# Joseph Simone v. Secretary of Homeland Security

> Court of Appeals for the Eleventh Circuit · October 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11172500

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** October 17, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11172500

## How later opinions describe it (automated extraction)

- explaining that the prior-panel-precedent rule “applies only to holdings, not dicta”

## Opinion text

USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 1 of 19

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
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 2 of 19

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).
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 3 of 19

23-11411 Opinion of the Court 3

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).
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 4 of 19

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 5 of 19

23-11411 Opinion of the Court 5

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 6 of 19

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 7 of 19

23-11411 Opinion of the Court 7

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).
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 8 of 19

8 Opinion of the Court 23-11411

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 9 of 19

23-11411 Opinion of the Court 9

“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).
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 10 of 19

10 Opinion of the Court 23-11411

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 11 of 19

23-11411 Opinion of the Court 11

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 12 of 19

12 Opinion of the Court 23-11411

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).
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 13 of 19

23-11411 Opinion of the Court 13

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
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 14 of 19

14 Opinion of the Court 23-11411

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 15 of 19

23-11411 Opinion of the Court 15

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)).
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 16 of 19

16 Opinion of the Court 23-11411

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
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 17 of 19

23-11411 Opinion of the Court 17

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 18 of 19

18 Opinion of the Court 23-11411

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.
USCA11 Case: 23-11411 Document: 47-1 Date Filed: 10/17/2025 Page: 19 of 19

23-11411 Opinion of the Court 19

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11172500. Public record. Not legal advice.