Joseph Simone v. Secretary of Homeland Security

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11411

____________________

JOSEPH SIMONE,

Plaintiff-Appellant,

versus

SECRETARY OF HOMELAND SECURITY,

United States Department of Homeland Security,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:22-cv-60746-RAR

____________________

Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.

BRANCH, Circuit Judge:

In this lawsuit, Joseph Simone, a former security screener

with the Transportation Security Administration (“TSA”),

contends that he was fired and retaliated against because of a

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2 Opinion of the Court 23-11411

disability in violation of the Rehabilitation Act of 1973 (the

“Rehabilitation Act”), 29 U.S.C. §§ 791(b), 794. The district court

granted the Secretary of the U.S. Department of Homeland

Security’s (the “Secretary”)1 motion to dismiss the case because the

enabling act for Simone’s employer, the Aviation and

Transportation Security Act (“ATSA”), precludes disability

discrimination claims against TSA. In dismissing Simone’s

complaint, the district court relied on Castro v. Secretary of Homeland

Security, 472 F.3d 1334, 1338 (11th Cir. 2006), in which we held that

ATSA exempts TSA from the requirements of the Rehabilitation

Act with respect to the hiring of security screeners. But in 2012,

Congress passed the Whistleblower Protection Enhancement Act

(the “WPEA”), which explicitly subjects TSA to Rehabilitation Act

claims. See 5 U.S.C. § 2304. Simone argues that the WPEA

abrogated our decision in Castro. The government responds that

(1) Castro can be reconciled with the WPEA, and (2) even if the two

cannot be reconciled, Simone cannot bring his claim in federal

district court.

After careful review, and with the benefit of oral argument,

we hold that the WPEA abrogated Castro and extended the

protections of the Rehabilitation Act to TSA security screeners.

Accordingly, we vacate and remand to the district court.

1 TSA is an agency within the Department of Homeland Security. 6 U.S.C.

§ 203(2).

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I. Background 2

Simone served as a Transportation Security Officer (“TSO”)

with TSA at the Fort Lauderdale-Hollywood International Airport

in Florida. His job was to screen airline passengers and their

baggage at security checkpoints. When Simone was hired, he

disclosed that he had a heart condition—a mitral valve prolapse—

that caused occasional heart palpitations. At the time, a TSA

physician determined he was medically fit for the job and cleared

him to be hired.

At various times during his employment, Simone took leave

under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§§ 2601 et seq., due to his condition, resting for a day or so to

recover from heart palpitations. But, in general, Simone’s

condition did not affect his ability to perform the essential

functions of his job when he was on duty.

In 2014, however, TSA decided that Simone was no longer

medically qualified to serve as a TSO and proposed to remove him

from federal service. He was placed on administrative leave on

2 Because Simone’s complaint reaches us at the motion to dismiss stage, we

“accept[] the complaint’s allegations as true and constru[e] them in the light

most favorable to the plaintiff.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1335

(11th Cir. 2012) (quotation omitted).

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4 Opinion of the Court 23-11411

August 22, 2014. 3 Simone was eventually removed from federal

service in February 2015. 4

Simone filed this lawsuit against the Secretary alleging four

claims under the Rehabilitation Act, 29 U.S.C. §§ 791(b), 794.

Count I alleged disability discrimination, specifically that TSA

“remov[ed] him from federal service because of his disability.”

Count II alleged that TSA failed to provide a reasonable

accommodation to allow Simone to continue working. Count III

alleged retaliation for Simone’s complaints of discrimination. And

Count IV alleged unlawful interference and coercion.

The Secretary moved to dismiss, arguing in part that ATSA

precluded Simone’s claims under the Rehabilitation Act. Simone

responded, arguing that ATSA’s preclusion of Rehabilitation Act

claims was abrogated by a later statute, the WPEA.

The district court agreed with the Secretary that ATSA

precluded Simone’s Rehabilitation Act claims, relying on our 2006

decision in Castro, 472 F.3d at 1338, which held that a TSA agent

cannot state a claim against TSA based on a violation of the

3 In response, Simone then filed an administrative complaint with TSA’s Civil

Rights Division in December of 2014, alleging discrimination and retaliation

in violation of the Rehabilitation Act.

4 After being removed, Simone requested a hearing on his administrative

complaint before an Equal Employment Opportunity Commission (“EEOC”)

administrative law judge (“ALJ”). The EEOC ALJ granted TSA’s motion for

summary judgment against Simone’s complaint for discrimination and

retaliation on September 27, 2019. Years later, the EEOC issued a final order

denying Simone’s appeal and request for reconsideration.

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Rehabilitation Act. The district court explained that according to

Castro “the plain language of the ATSA allows—and in some

circumstances, requires—TSA to make employment decisions that

are contrary to the requirements of the Rehabilitation Act.” 5 Thus,

as the district court recited from Castro, ATSA “indicates that TSA

need not take the requirements of the Rehabilitation Act into

account when formulating hiring standards for screeners.” Id. at

1337. The district court relied on Castro’s statement that ATSA’s

text indicates Congress’s intent for ATSA “to take precedence over

any preexisting or subsequently-enacted legislation on the same

subject.” Id. (alterations adopted) (citation omitted). The district

court also rejected Simone’s counterargument that the later-

enacted WPEA abrogated Castro and permitted Simone’s suit.

Accordingly, the district court dismissed Simone’s complaint. 6

Simone timely appealed.

II. Standard of Review

“We review de novo the district court’s grant of a [Federal

Rule of Civil Procedure] 12(b)(6) motion to dismiss for failure to

state a claim, accepting the complaint’s allegations as true and

construing them in the light most favorable to the plaintiff.”

Chaparro, 693 F.3d at 1335 (quotation omitted). We review

5 This conclusion was later bolstered by our sister circuits. See Field v.

Napolitano, 663 F.3d 505, 512 (1st Cir. 2011) (collecting other circuit decisions

arriving at the same conclusion prior to the enactment of the WPEA).

6 The district court declined to address the Secretary’s argument that Simone’s

suit was barred because he had failed to exhaust his administrative remedies.

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6 Opinion of the Court 23-11411

questions of statutory interpretation de novo. United States v. Bryant,

996 F.3d 1243, 1251 (11th Cir. 2021).

III. Discussion

Simone argues that the district court erred in dismissing his

complaint because the WPEA “show[s] that Congress intended to

override those ATSA provisions which were held in Castro to

preclude TSO screeners from filing suit under the Rehabilitation

Act.”

Simone’s argument involves consideration of the

Rehabilitation Act, ATSA, and the WPEA, their interaction with

one another, and an examination of our cases interpreting them.

To determine the meaning and interplay of related statutes, “the

Court relies on traditional rules of statutory interpretation. That

does not change because the case involves multiple federal

statutes.” POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 112

(2014). “Nor does it change because an agency is involved.” Id.; cf.

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024) (overruling

Chevron deference). “Analysis of the statutory text, aided by

established principles of interpretation, controls.” POM Wonderful,

573 U.S. at 112.

Doing so, we find that the WPEA confers Rehabilitation Act

protections on TSOs like Simone, thus superseding certain

provisions of ATSA and abrogating our decision in Castro. We

begin our analysis with the Rehabilitation Act and ATSA,

highlighting the tension between the two.

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The Rehabilitation Act prohibits federal employers from

discriminating against individuals with disabilities who are

otherwise qualified to hold the job in question. See 29 U.S.C. § 794. 7

The standards used to determine violations of the Rehabilitation

Act are set forth in Title I of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101 et seq., which itself prohibits

discrimination on the basis of disability. See 29 U.S.C. § 794(d)

(referencing the ADA); 8 see also 42 U.S.C. § 12102(1) (defining a

“disability” as “a physical or mental impairment that substantially

limits one or more major life activities”). Accordingly, the

Rehabilitation Act allows federal employees to sue in federal

district court if they are the victim of federally prohibited disability

7 Section 794(a) of the Rehabilitation Act provides that

[n]o otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the benefits

of, or be subjected to discrimination under any program or

activity . . . conducted by any Executive agency . . . .

29 U.S.C. § 794(a).

8 Section 794(d) of the Rehabilitation Act provides that

[t]he standards used to determine whether this section has

been violated in a complaint alleging employment

discrimination under this section shall be the standards applied

under title I of the Americans with Disabilities Act of 1990 . . .

as such sections relate to employment.

29 U.S.C. § 794(d).

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discrimination. See Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,

507 F.3d 1306, 1310–11 (11th Cir. 2007).

ATSA, however, sets up a hiring structure for TSA security

screeners that is an exception to the Rehabilitation Act’s general

sweep because it allows TSA to discriminate in hiring on the basis

of disability. ATSA sets out necessary “aptitudes and physical

abilities” for employees of TSA, including TSOs like Simone. See

49 U.S.C. § 44935(a)–(f). Specifically, ATSA provides that the TSA

Administrator “shall establish qualification standards for

individuals to be hired by the United States as security screening

personnel.” Id. § 44935(e)(2)(A). These qualification standards

apply to TSA hiring “[n]otwithstanding any other provision of

law.” Id. § 44935(e)(2)(A)(iii) (cross-referencing § 44935(f)).

Section 44935(f), in turn, describes these requirements in reference

to TSA screening personnel, and includes that TSOs must “possess

basic aptitudes and physical abilities, including color perception,

visual and aural acuity, physical coordination, and motor skills, to

[specified] standards.” Id. § 44935(f)(1)(B). 9 These baseline

9 Those specified aptitudes and abilities are as follows:

(i) Screeners operating screening equipment shall be able to

distinguish on the screening equipment monitor the

appropriate imaging standard specified by the Administrator.

(ii) Screeners operating any screening equipment shall be able

to distinguish each color displayed on every type of screening

equipment and explain what each color signifies.

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“physical abilities” are meant to help TSOs perform their general

duties. See id. § 44935(f)(1)(B).

As a result, ATSA’s statutory language provides that TSA

personnel are not subject to the normal remedial processes

outlined in the Rehabilitation Act 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.” Id.

§ 44935 note; see ATSA, Pub. L. No. 107-71, tit. I, § 111(d), 115 Stat.

597, 620 (2001). Thus, while the Rehabilitation Act forbids

disability discrimination in federal hiring, ATSA allows TSA to

discriminate based on disability when hiring TSOs.

Confronted with the tension between these two statutes in

Castro, we held that “[t]he plain language of ATSA indicates that

(iii) Screeners shall be able to hear and respond to the spoken

voice and to audible alarms generated by screening equipment

in an active checkpoint environment.

(iv) Screeners performing physical searches or other related

operations shall be able to efficiently and thoroughly

manipulate and handle such baggage, containers, and other

objects subject to security processing.

(v) Screeners who perform pat-downs or hand-held metal

detector searches of individuals shall have sufficient dexterity

and capability to thoroughly conduct those procedures over

an individual’s entire body.

49 U.S.C. § 44935(f)(1)(B)(i)–(v).

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TSA need not take the requirements of the Rehabilitation Act into

account when formulating hiring standards for screeners.” 472

F.3d at 1337. Specifically, we pointed to ATSA’s clause allowing

“TSA to establish hiring criteria . . . for security screeners

‘notwithstanding any other provision of law.’” Id. (alteration

adopted). We noted that a “notwithstanding” clause indicated that

Congress meant for the language of ATSA “to take precedence

over any preexisting . . . legislation on the same subject.” Id.

(alterations adopted). 10 We 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.” Id. Thus, unless the WPEA abrogates our

holding in Castro, we are bound to hold that Simone cannot state a

claim against the Secretary under the Rehabilitation Act. See United

States v. Woodard, 938 F.2d 1255, 1258 n.4 (11th Cir. 1991) (“[A]

clear change in the law by Congress could . . . justify a panel of this

court in not following an earlier panel’s decision, where the prior

panel’s decision was based on legislation that had been changed or

repealed.”).

We turn now to the WPEA. In 2012, the WPEA amended

the Civil Service Reform Act of 1978 (“CSRA”), providing

enhanced whistleblower and employment discrimination

10 Castro also stated that a “notwithstanding” clause means that a statute

should take precedence over “subsequently-enacted legislation.” 472 F.3d at

1337. More on that later.

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protections to federal employees. 11 See Pub. L. No. 112-199, tit. I,

§ 109(a)(2), 126 Stat. 1465, 1470. The WPEA specifically addresses

statutory protections available to TSA employees:

Notwithstanding any other provision of law, any

individual holding or applying for a position within

the Transportation Security Administration shall be

covered by—

(1) the provisions of section 2302(b) (1), (8),

and (9);

(2) any provision of law implementing section

2302(b) (1), (8), or (9) by providing any right or

remedy available to an employee or applicant

for employment in the civil service; and

(3) any rule or regulation prescribed under any

provision of law referred to in paragraph (1) or

(2).

5 U.S.C. § 2304(a)(1)–(3) (emphasis added). The cross-referenced

portions of § 2302(b) prohibit federal employment discrimination.

Specifically, the provisions prohibit the federal government from

discriminating based on a “handicapping condition . . . under

11 The CSRA allows a federal employee subjected to an adverse personnel

action to, among other things, “appeal [his] agency’s decision to the Merit

Systems Protection Board.” Kloeckner v. Solis, 568 U.S. 41, 43 (2012); see also 5

U.S.C. §§ 7512, 7701.

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Section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791)”; 12

whistleblowing activity; 13 or “the exercise of any appeal, complaint,

or grievance right granted by any law, rule, or regulation.”14 So,

ultimately, 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 Rehabilitation Act prohibiting disability

discrimination and retaliation for the exercise of any right granted

by the Rehabilitation Act. 5 U.S.C. §§ 2304(a), 2302(b)(1), (9);

29 U.S.C. § 791.

In construing statutes, “when the statutory language is plain,

we must enforce it according to its terms.” Jimenez v. Quarterman,

555 U.S. 113, 118 (2009). When we review the text of a statute, 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. Cisneros v. Alpine Ridge Grp., 508 U.S.

10, 18 (1993). And in Castro, we similarly noted the importance of

the “notwithstanding” language, holding it indicated

Congressional intent for “the statute containing that language . . .

‘to take precedence over any preexisting . . . legislation on the same

subject.’” Castro, 472 F.3d at 1337 (alteration adopted). Here, as

12 See 5 U.S.C. § 2302(b)(1)(D).

13 See 5 U.S.C. § 2302(b)(8).

14 See 5 U.S.C. § 2302(b)(9)(A).

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discussed, the plain language of the WPEA confers Rehabilitation

Act protections on TSA security screeners, which conflicts with

ATSA. See 5 U.S.C. § 2304(a). Because the later-enacted WPEA

confers its protections using “notwithstanding” language, see id., it

supersedes ATSA. See Cisneros, 508 U.S. at 18.

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. When two statutes irreconcilably

conflict, we must give effect to the later statute as repealing the

prior, even if that repeal occurs by implication. Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 55,

at 327 (2012) (“Repeals by implication are . . . very much

disfavored. But a provision that flatly contradicts an earlier-

enacted provision repeals it.”) (quotation omitted).

Likewise, our prior-panel-precedent rule does not prevent us

from reaching this conclusion. Typically, we may not disregard the

holding of a prior panel of this Court absent a decision of the

Supreme Court or this Court sitting en banc. United States v. Kaley,

579 F.3d 1246, 1255 (11th Cir. 2009). But our precedent may also be

abrogated by statute. See, e.g., Woodard, 938 F.2d at 1258 n.4. When

we consider whether a statute has abrogated our prior precedent,

we require “a clear change in the law” to hold that a prior precedent

has been overruled by subsequent legislation. Id.; see also Sellers v.

Rushmore Loan Mgmt. Servs., 941 F.3d 1031, 1043 n.7 (11th Cir. 2019).

In Sellers, for example, we held that the prior-panel-precedent rule

did not apply to protect a prior holding about the requirements of

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the Bankruptcy Code because Congress had amended the Code to

require a contrary outcome. Sellers, 941 F.3d at 1043 n.7. Here, we

have precisely the same situation—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 Simone

because the WPEA specifically provides them with Rehabilitation

Act protections.15 Accordingly, we hold that the WPEA abrogated

Castro by specifically providing Rehabilitation Act protections to

TSOs like Simone. See 5 U.S.C. §§ 2304(a), 2302(b)(1), (9); 29 U.S.C.

§ 791; Woodard, 938 F.2d at 1258 n.4.

The Secretary argues that the district court correctly

concluded that Castro compelled its ruling that Simone could not

state a claim under the Rehabilitation Act because we stated 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.

Castro, 472 F.3d at 1337 (emphasis added). For this reason, the

Secretary argues that it does not matter that the subsequently

enacted WPEA also includes a “notwithstanding” clause. This

precedent-based reasoning too narrowly focuses on what Castro

said, as opposed to what it held. “[W]e have pointed out many

times that regardless of what our court says in its opinion, the

15 We note that, to the extent that the Secretary argues that our prior-panel-

precedent rule prevents Castro from being abrogated except by the Supreme

Court or this Court sitting en banc, the Secretary is wrong. See Woodard, 938

F.2d at 1258 n.4.

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decision can hold nothing beyond the facts of that case.” United

States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (alteration

adopted) (quotation omitted). In Castro we did not deal with

conflict between ATSA and subsequently enacted legislation. 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. Accordingly, we did not adopt a hard

and fast rule that any statute with a “notwithstanding” clause

prevails over any subsequently enacted statute. 16 Thus, the fact

that the earlier ATSA contains a “notwithstanding” clause does not

affect our analysis of whether the later WPEA abrogated our earlier

holding that TSO screeners were exempt from the Rehabilitation

Act.

Next, the Secretary argues that the district court correctly

determined that Castro was not abrogated by the WPEA because

we relied on Castro in a case analyzing the Rehabilitation Act that

was issued after the WPEA was signed into law. Specifically, the

16 In fact, courts cannot tie the hands of Congress in such a manner. See Dorsey

v. United States, 567 U.S. 260, 274 (2012) (“[S]tatutes enacted by one Congress

cannot bind a later Congress, which remains free to repeal the earlier statute,

to exempt the current statute from the earlier statute, to modify the earlier

statute, or to apply the earlier statute but as modified. And Congress remains

free to express any such intention either expressly or by implication as it

chooses.” (citation omitted)).

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Secretary points to Center v. Secretary, Department of Homeland

Security, 895 F.3d 1295, 1302 (11th Cir. 2018).

Center involved a Customs and Border Protection agent’s

disability discrimination suit under the Rehabilitation Act. Id. at

1297. On appeal, the government argued that we could affirm the

district court’s disposal of the case on the ground that a different

statute—the Compensation Act—“barr[ed] judicial review of

remedies for work-related injuries.” Id. at 1299. We disagreed,

holding that there was no “conflict” between the Compensation

Act and the Rehabilitation Act. Id. at 1302. We agreed with the

government’s general proposition that “Congress [could] exempt

agencies from compliance with the Rehabilitation Act when it

creates workplace laws that explicitly conflict with and supersede

the requirements of the Rehabilitation Act,” and we gave Castro

and ATSA as an example. Id. at 1302–03. “In contrast,” we said,

“the Compensation Act offers no exception to the requirements of

the Rehabilitation Act.” Id. at 1303. In reaching this conclusion,

however, Center did not address the effect of the WPEA on ATSA’s

preclusion of the Rehabilitation Act or on Castro’s present viability.

Thus, Center was not about the WPEA. And in Center, we never

held, said, or even implied that the WPEA does not allow TSOs to

sue under the Rehabilitation Act. Instead, we merely contrasted

ATSA with another statute and pointed to Castro and ATSA as an

example of Congress providing an explicit carveout from

Rehabilitation Act protections for a specific group of federal

employees. Id. at 1302–03. Because we only referenced ATSA and

TSOs for illustrative purposes, Center’s reference to Castro is dicta

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and does not bind us on the effect of the WPEA on ATSA. See

United States v. Birge, 830 F.3d 1229, 1232 (11th Cir. 2016)

(explaining that the prior-panel-precedent rule “applies only to

holdings, not dicta”).

Third, the Secretary suggests that we must prefer a

construction that allows both statutes to be effective. F.C.C. v.

NextWave Pers. Commc'ns Inc., 537 U.S. 293, 304 (2003) (“[W]hen

two statutes are capable of co-existence, it is the duty of the courts,

absent a clearly expressed congressional intention to the contrary,

to regard each as effective.” (internal quotation marks omitted)).

To that end, the Secretary argues that both ATSA’s bar on TSOs

bringing Rehabilitation Act claims and the WPEA’s apparent

reinstatement of certain Rehabilitation Act rights are “are capable

of co-existence.” The Secretary proposes that we may harmonize

the two statutes by reading the WPEA to restore certain remedial

rights under the Rehabilitation Act that may only be vindicated in

an administrative proceeding and (if necessary) through judicial

review in the Federal Circuit. But the WPEA’s language is not

capable of co-existence with the ATSA’s bar on Rehabilitation Act

claims by TSOs. As we noted above, a plain reading of both

statutes shows that they irreconcilably conflict. And where statutes

irreconcilably conflict, we read the latter as repealing the former.

See Branch v. Smith, 538 U.S. 254, 273 (2003). Thus, we reject the

Secretary’s contention that we may read the statutes

harmoniously.

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Finally, the Secretary claims that every circuit to consider

whether the WPEA repealed ATSA’s bar on TSOs bringing claims

pursuant to the Rehabilitation Act has agreed with its reading,

along with many district courts. But the Secretary overstates the

holdings of those cases, which shed no light on the issue we

confront today. Some of these cases are irrelevant because they

were decided before the WPEA was enacted in November of 2012.

See, e.g., Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011);

Field, 663 F.3d at 512; Conyers v. Rossides, 558 F.3d 137, 145 (2d Cir.

2009). Another post-dates the WPEA’s enactment but does not

consider or mention the WPEA whatsoever. Kaswatuka v. U.S.

Dep’t of Homeland Sec., 7 F.4th 327, 330 (5th Cir. 2021) (addressing

the conflict between the Rehabilitation Act and ATSA without

considering the influence of the WPEA).

Only one of the cited cases, plus another decided after oral

argument in this case, have acknowledged the WPEA’s effect on

ATSA expressly. The first case declined to grapple with that

question because “this issue was not raised in the district court.”

Galaza v. Mayorkas, 61 F.4th 669, 673 (9th Cir. 2023). The second

case, which the parties discussed in submissions after oral

argument, also chose not to answer the question by dismissing the

case on the merits without addressing the conflict between ATSA

and the WPEA. Serrano-Colon v. United States Dep’t of Homeland Sec.,

121 F.4th 259, 274–77 (1st Cir. 2024). Accordingly, these cases are

not persuasive.

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IV. Conclusion

In sum, the WPEA abrogated our holding in Castro, and the

district court erred by dismissing Simone’s complaint pursuant to

that holding. Because the district court did not reach the

Secretary’s argument that Simone failed to exhaust administrative

remedies before filing suit, we do not consider it in the first

instance. Accordingly, we vacate and remand to the district court

for consideration of whether Simone has satisfied the

administrative requirements to bring his claims in federal district

court.

VACATED AND REMANDED.