Petition for Rehearing — Fikreta Cenanovic, Petitioner v. Hamdard Center for Health and Human Services

FILED

OCT 31 202

FFICE OF THE CLERK

eaten {© COURT, U.S.

No. 24-7221

==> —— BR

Supreme Court of the United States

FIKRETA CENANOVIC, Petitioner,

v.

HAMDARD HEALTH ALLIANCE, Respondent,

On Petition for Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

PETITION FOR REHEARING

RECEIVED

NOV - 4 2025

RULE 29.6 STATEMENT

The disclosure statement in the petition for a writ of certiorari remains

accurate.

All pages of supplemental brief submitted in June of 2025 remain

unchanged but, that brief without cover has 2880 words.

By using different computers and different words program and by adding

cover word count was miscalculated to higher number of words.

il

TABLE OF CONTENTS

Page

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NEW CONTROLING AUTHORITY ........ccccccccceccceeccssesseseserseeseceeeeeeeeeteeesseees ill

PETITION FOR REHEARING. ..........c.cccccccceeseeceeseeeeeeeeeceesssesseeseeeeeesaacaeeteeeeees 1

GROUNDS FOR REHEARING .u.......cccecccccssscessssssesssssccesecesseeaeeeseeeseceeeeeeaaees ]

CONFLICT BETWEEN THE COURTS OF APPEALS

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THIS CASE PRESENTS THE IDEAL KEY

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NATIONAL IMPORTANCE AND CIRCUIT SPLITS «0.0.0... 6

EXTRAORDINARY CIRCUMSTANCE ........ccccccceessesseseeseceseseeseeeeeeseeeeenanens 7

CONCLUSION 1.00. .ccccccccccesecccccccceececececevscssececescersceececeeeceversuceeeeeaueececeesueeeeeasanss 8

CERTIFICATE OF PETITIONER sssssssssovcsvonssossacsssovonsceossrocssesernanseseneennes 10

iii

TABLE OF AUTHORITIES

Page(s)

Cases fron Supplemental Brief

* Beasley v. O'Reilly Auto Parts,

Sth Cir. 2022 essissesssicesvavicssasbeissettiviwtacsitcancstseacacsccscursisscasiusses b)

¢ Chambers v. NASCO, Inc.,

SOL U.S. 32 (L99T) sors .sereaes diacinaaaanenncaeaeshaanpsiatinisnsatbcdsatusdies 3

¢ Clark County School Dist. v. Breeden,

532 U.S. 268 (2001) ......1.-+-sagepenssayaitogansaussectasacaisswesipeanss 5

¢ EEOC v. Wal-Mart Stores, Inc.,

477 F.3d S61 (8th Cir, 2007) .cerccesecescessessseereseressecseseess

« Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238 (1944) sisisiiaienssvcisseaviciveseasssteucsivssesvisis 3

¢ Nunes v. Wal-Mart Stores, Inc.,

164 F.3d 1243 (Oth Cir, 1999) oeccccccccsescseseeecseeessrscsseesceees 5

* U.S. Airways, Inc. v. Barnett,

535 U.S. 391 (2002) —=—_—_ saaisasisasentusaacsstinatsinsueccasanienanatbin 5

Bragdon v. Abbott (1998) ) ccccccccccseccsssessserssenecsssesesesenevesseseeeees 7

Sutton v. United Air Lines, Ine. (1999) o..cccccccccssccceseseeeesesseeees 7

NEW CONTROLING AUTHORITY

«Joseph Simone,Plaintiff-Appellant, v. Secretary of Homeland Security

United States Department of Homeland Security, Defendant-Appellee.

23-11411 (11 th Circuit 2025) eee sseesstseseeseseeesesetenseenenes 2

¢ Harmon v. Collier, No. 23-40342 (Sth Cir. Oct. 14, 20.......ccceceeees 2

*Cullen v. Clean Water ServiceS ——veneussceeeecesseceeeeeeteeeeseseeeee® 3

PETITION FOR REHEARING

Pursuant to this Court’s Rule 44.2, Petitioner Fikreta Cenanovic respectfully petition for

rehearing of this Court’s October 6th, 2025 order denying certiorari in this case.

GROUNDS FOR REHEARING

This case presents the exceptionally rare situation in which a significant “intervening

circumstanc[e]’— the opening of a circuit split on the constitutionality of a federal statute—has

arisen within 25 days of this Court’s denial of certiorari. Sup. Ct. R. 44.2.

There is now a pure, acknowledged conflict between the Fifth and Eleventh Circuit’s decisions

below and a contrary decision from the Seventh Circuit, which has held that the Hamdard

Health Alliance has not : violated, discriminated and failed to accommodate Petitioner under

Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.

Moreover, those cases present a uniquely key for the Court to resolve that conflict. In light of

this development, the Court should grant rehearing and certiorari in this case.

THERE IS NOW AN OPEN CONFLICT BETWEEN THE COURTS OF APPEALS

The development of a circuit split over the consti-tutionality of a federal statute presents a

quintessen-tial case for certiorari, and this Court has previously granted rehearing in similar

circumstances, where a circuit split arises shortly after the denial of certio-rari. This case thus

presents the rare situation where rehearing should be granted. See Sup. Ct. R. 44.2.

This case presents an important question of federal law: whether Hamdard Health Alliance

(HHA) violates the Americans with Disabilities Act of 1990, 42 U.S.C, § 12101 When the

certiorari petition in this case was filed and decided, however, there was no circuit conflict on

that question. This Court denied the petition on October 6th, 2025.

1.

But 11 days later the 11" Circuit Court issued its opinion

Simone v. Secretary of Homeland Security (11th Cir. Oct. 17, 2025)

In Simone, the Eleventh Circuit reaffirmed the application of ADA protections and standards

in employment contexts, particularly regarding retaliation and failure to accommodate claims.

Simone’s holding expands the rights of federal employees who request accommodations

following a disability , ensuring that employee is protected from retaliatory actions for asserting

rights under the law.

The factual parallels between Simone and this case are striking. Just as the petitioner

in Simone faced retaliation for seeking accommodation, Petitioner here faced retaliation

approximately 3 months and 14 days after the work injury. The employer’s failure to honor the

request for an accommodation, and the subsequent termination , is directly akin to the

situation in Simone, where federal employees are entitled to protection from such treatment

under the Rehabilitation Act.

“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 seqg., 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”)”

Petitioner , being employee of Hamdard HA (which as “NFP “ and FQHC received federal funds)

and being only Case manager who worked as Health Care Navigator should have been entitled to

protection by both Rehabilitation Act as well as ADA same way as Simone was protected.

The Eleventh Circuit’s new decision warrants this Court’s rehearing and either a grant or hold of

Cenanovic’s petition for certiorari.

a

Even earlier on 8" day from Petition’s denial, Fifth Circuit issued its opinion

Harmon v. Collier, No. 23-40342 (5th Cir. Oct. 14, 2025). That decision openly conflicts with the

Seven Circuit’s decision below.

In Harmon, the Fifth Circuit emphasized that failure to accommodate and retaliation

claims must be examined with a critical focus on the timing of adverse actions and whether

those actions were caused by the employee’s request for accommodation.

The court found that retaliation claims should be scrutinized based on a causal

connection between the request for accommodations and the adverse employment action.

In Harmon, the court ruled that even in cases of disputed evidence (such as claims of neverreceived documents), employee is entitled to fair consideration and further fact-finding if

there is any evidence of retaliation or discriminatory intent.

“Sufficiency of the evidence on termination and failure to accommodate The Defendants argue

there was insufficient evidence to uphold the jury’s verdict because: (1) Harmon was not a

“qualified” individual with a disability, (2) Harmon could not be accommodated reasonably, and

(3) Harmon failed to show the Defendants acted with discriminatory or retaliatory animus when

terminating her”

The same principles apply here: despite Defendant’s claim of never receiving the Modified

Work Form, Petitioner has proof (fax confirmation and subpoenaed documentation) that the

form was indeed provided to Defendant attorney, to 7" Circuit as part of Request for Rehearing

See Case: 24-1743 Document: 22 Filed: 12/04/2024 and since that request was denied petitioner

asked this court as well as District Court : Case: 1:20-cv-07612 Document #: 94 Filed: 03/25/25

to resolve this critical issue.

In light of this, Petitioner should be entitled to a full trial to address the genuine disputes of

fact regarding whether the adverse actions were retaliatory in nature and whether the failure to

accommodate was a violation of ADA protection

. The Fifth Circuit and Eleventh Circuit have now held that “HHA’s retaliation and refusal to

accommodate are facially unconstitutional” and recognized that “[i]n doing so, part ways with

esteemed colleagues on the Seventh Cir-cuit

Their decisions highlight how different jurisdictions handle similar legal issues, potentially

supporting arguments for certiorari based on procedural fairness or consistency.

These decisions provide clear guidance on how courts should handle claims of retaliation, failure

to accommodate, and the interplay between workplace injuries and disability-related

accommodations.

3.

Additionally, in Cullen v. Clean Water Services, the Oregon Court of Appeals recently (Oct. 15,

2025) reversed a trial court’s grant of summary judgment, emphasizing the importance of allowing’

further discovery when material facts are in dispute. While this is a state-level decision, it

underscores the broader legal principle that disputes over material facts, which should not be

resolved at the summary judgment stage without adequate opportunity for discovery and trial.

In reaching this conclusion, the Fifth Circuit ex-pressly rejected the premises underlying the

Seven Circuit’s decision below.

First, the Seventh Circuit had held that Petitioners’ could not succeed because” Cenanovic

cannot show she is a qualified individual under the ADA or that Hamdard

retaliated against her for claiming benefits, we affirm.”

The Fifth Circuit, in contrast, “[w]ith great respect to [its] col-leagues on the Seventh Circuit,”

disagreed, holding that the Seventh could subordinate every aspect of the ADA’s enforcement”

through its rulemaking

“As the Fifth Circuit recognized in Harmon, an employer may not terminate an

individual before engaging in the interactive process where a disability and accommodation

request are known.”

* “Here, just 2 days after Petitioner requested an additional defined recovery period the employer

terminated —thus it triggered the risk of stymying the process as in Harmon.”

* “My employer is a federally-funded program; therefore the Rehabilitation Act coverage applies,

as Harmon makes clear.”

* Petitioner was singled out (only one fired in restructuring)

Fifth Circuit saw an error where Seventh Circuit didn’t by saying: “We see no error. First,

Hamdard did engage in the interactive process by faxing Cenanovic’s lawyer a modified work

form, which solicited Cenanovic’s suggestions for a reasonable accommodation...... But it was

Cenanovic’s doctors who failed to sign off on the form or otherwise respond, making her

responsible for the breakdown in the interactive process.” Seventh Circuit saw the proof and

denied rehearing. The Court’s Decision did not adequately consider Key evidence.

As the Fifth Circuit noted, the similarity is that both employees had documented medical

restrictions and needed accommodation. The difference is how the courts interpreted the

sufficiency of documentation, the interactive process, and failure to accommodate, which is

why one case failed and the other succeeded.

The circuit split explains the different outcomes:

* 7th Circuit (Cenanovic): employee is not “qualified; employer’s failure to engage = no liability.

* Sth Circuit (Harmon): employee could perform work with accommodations; employer’s failure

to engage = liability.

Second, Seventh Circuit believed: “she maintains that despite her injuries, there were functions of

her job, such as translation, that she “was and is” able to perform” and as District Court

“No reasonable jury could find that she was a qualified individual under the

ADA”

The lifth Circuit “again disagree[d] with [its] sister circuit.”. 3. “The Defendants’ framing

of the requested accommodation as one for ‘extended or indefinite leave’ improperly

assumes the jury’s role as fact-finder.” (Slip op. at Page 16) and “The cause of [an

employer’s] failure [to accommodate] is irrelevant.” (Slip op. at Page 20)

Third, the Fifth Circuit held that “the Seven Circuit has full authority to review entire record”

There is a threshold jurisdictional issue in the Fifth Circuit case concern-ing the finality of the

District and Appellate court’s decision which could prevent this Court from reaching the merits

so Petitioner has, as reminder and for comparison, made :

Timeline diagram for Cenanovic, Simone, Harmon, and Cullen that

shows diagnosis/medical documentation, leave, and termination events:

Timeline: Medical Condition = Leave/Accommodation 3

Termination/Separation

Cenanovic v. Hamdard:

[ Injury occurs] = [ Doctor submitted modified-work form] = [On

leave 104 days] ~ [Termination while on leave] NONE of ANY

options available!

Joseph Simone v. DHS:

[Medical condition arises] ~— [FMLA leave taken / medical

restrictions documented] -= [Agency evaluates essential

functions] = [ Accommodation decision / termination challenge]

Harmon v. Collier:

[ Medical condition arises] — [Leave 180 days / medical

restrictions submitted] = [ Interactive process with employer] —

[ Termination or adverse employment action analyzed]

Cullen v. Clean Water Services:

[Mental health condition suspected] + [No formal diagnosis or

FMLA leave] ~— [Separation / resignation occurs] — [ Court

analyzes procedural/factual dispute over resignation]

The Intervening Developments

Since this Court’s denial of certiorari, several appellate decisions have clarified and, in some

instances, highlighted continuing uncertainty in the application of disability discrimination

law under the Americans with Disabilities Act (“ADA”), particularly with respect to causation

standards in termination cases following work-related injuries.

Most notably, in Harmon v. Collier, No. 23-40342 (5th Cir. Oct. 14, 2025), the Fifth Circuit

vacated a jury verdict because of irreconcilable findings under differing causation standards

for disability discrimination and retaliation claims. The jury in Harmon had returned

conflicting verdicts what demonstrates that the lower courts continue to struggle with

determining the proper standard for establishing ADA liability, especially in cases involving

overlapping claims. This uncertainty directly bears on the questions presented in this petition,

which concern whether termination shortly after a work-related injury constitutes

discrimination.

In addition, the record in the present case contains evidence of employer and counsel

misrepresentation that may rise to the level of fraud upon the court. While no published post-

October 2025 appellate decision precisely addresses fraud on the court in the context of postinjury ADA termination claims, the combination of Harmon’s doctrinal clarification and the

factual concerns of procedural misconduct underscores the ongoing uncertainty and

exceptional circumstances warranting review.

Taken together, these intervening developments demonstrate that the questions presented in

this petition remain unresolved in the lower courts. The decision in Harmon, in particular,

confirms that doctrinal confusion persists regarding ADA causation standards, and the alleged

fraud upon the court raises additional concerns about the proper administration of justice.

Accordingly, rehearing is warranted to provide clarity, ensure uniform application of the

ADA, and safeguard the integrity of judicial proceedings.

NATIONAL IMPORTANCE AND CIRCUIT SPLITS

This case raises recurring federal questions that require Supreme Court resolution:

1. ADA protection for employees on medical leave requesting reasonable accommodation

2. Treatment of verified documentary evidence at the summary judgment stage

3. Judicial response to deliberate misrepresentation and fraud

Lower courts have applied inconsistent standards, as detailed in the supplemental brief

submitted June 20, 2025 which already cited additional cases highlighting circuit splits and

national importance

National uniformity is essential to prevent repeated misapplication of ADA protections.

Emergence of a pure and acknowledged circuit split over the constitutionality of a federal statute makes this case the paradigmatic candidate for re-hearing and certiorari, where, as here,

the courts of appeals disagree over whether a federal statute violates the Constitution,

“certiorari is usually granted because of the obvious importance of the case.”

The emergence of a clear conflict on the important question whether HHA unconstitutionally

violates the ADA law—a conflict that arose just 8 tol1 days after this Court denied certiorari

thus presents the exact extraordinary circumstance in which a petition for rehearing should be

granted.

THIS CASE PRESENTS THE IDEAL KEY TO RESOLVE THE CONFLICT

The Court should grant this petition for rehear-ing, rather than waiting for a District court to

rule on Motion for fraud, for two reasons. First, the conflict between the Seven and Eleven

Circuits’ decisions as well as conflict between Seven and Fifth will result in significant

regulatory disuniformity and uncertainty in the disability.

This case offers the Court the opportunity to resolve that uncertainty and the question

presented as early as possible.

Workers: healthy workers, injured workers who filled worker’s compensation claim as well as

injured workers who didn’t file worker compensation claim, Providers, Human Resource as

well as People of Court urgently need to know who has the power to regulate FMLA, worker

compensation and ADA so no one should be trapped in cycle of confusion .Until this Court

resolves the un-certainty, disabled workers nationwide will be subject to misclassified as

“unqualified” in all state.

This Court should provide that urgently needed clarity as soon as possible by granting this

petition. See Bragdon v. Abbott (1998), and Sutton vy, United Air Lines, Inc. (1999) In both

cases certioraris granted because of “the need for a uniform rule on [a] point” on which the

courts of appeals were divided.

EXTRAORDINARY CIRCUMSTANCES

The decisions in Simone and Harmon represent a divergence in how disability

accommodations and retaliation claims are handled across the circuits. Petitioner argues that

this Court should grant rehearing or certiorari to resolve these differences and clarify

the standard of proof and burden shifting in cases where an employer disputes receipt of

approved modified work form and retaliates against the employee.

* The combination of fraud upon the court, new controlling authority, and unresolved

circuit conflicts constitutes extraordinary circumstances.

* Summary judgment under these conditions denied Petitioner due process, warranting this

Court’s intervention.

Intervening Circumstance: Pending Rule 60(b)(3) Motion Based on Fraud and

Misrepresentation

Petitioner filed a motion under Federal Rule of Civil Procedure 60(b)(3) in the United States

District Court for the Northern Illinois while the petition for writ of certiorari in this case was

pending. That motion remains under advisement. It is supported by documentary evidence

indicating that Respondent’s counsel and/or agents misrepresented material facts to the district

court concerning receipt of Petitioner’s Modified Work Request Form, which was central to the

summary judgment ruling.

The unresolved 60(b)(3) motion directly challenges the integrity of the district court’s judgment

that formed the basis for appellate and Supreme Court review. Accordingly, this ongoing

proceeding constitutes anintervening circumstance of substantial and controlling

effect under Supreme Court Rule 44.2.

CONCLUSION

Petitioner respectfully requests that this Court grant rehearing to consider the Petition for Writ

of Certiorari in light of:

1. New controlling authority from the Fifth Circuit

2. The national importance and recurring ADA questions

3. Verified fraud upon the court

This Court’s intervention is necessary to correct a miscarriage of justice and ensure uniform

application of ADA law.

2. This case also presents a clean vehicle to re-solve the constitutional question. There is a

threshold jurisdictional issue in the Fifth Circuit case concern-ing the finality of the district

court’s decision which could prevent this Court from reaching the merits

This case, by contrast, cleanly presents the constitutional question after a final judgment on the

merits without any complicating key issues

Until this Court finally resolves “the legal uncertainty regarding the Act’s constitutionality,” the

injured workers will be subject to a patchwork of different state, private, and federal regulators,

whose respective allocations of power will differ based on the jurisdictions in which covered

parties operate.

Lastly, that is last that injured workers are seeking. Damaged in whole do not want to be

patched!

There is still beauty behind all this pain! We deserve healing:

Relief Requested

Petitioner respectfully requests that this Court:

1, Grant rehearing of the denial of certiorari; or

2.In the alternative, Petitioner respectfully requests that this Court hold this petition in

abeyance pending the District court’s ruling on Petitioner’s Motion Rule 60(b)(3). Because the

district court’s forthcoming ruling may alter or vacate the judgment at issue, holding the petition

in abeyance would ensure that this Court’s consideration proceeds on a complete and accurate

procedural record, in the interests of judicial economy and fairness so Before the Court closes the

book on this case, please wait until the lower court rules

3. Grant such other relief as the Court deems just and proper in light of these intervening

circumstances,

Because this case is the most suitable key for resolving the circuit conflict—and for providing urgently needed clarity on an important question of federal law—this Court should grant petition for

rehearing and certiorari.

Respectfully submitted,

Fikreta Cenanovic

CERTIFICATE OF PETITIONER

I hereby certify that this petition for rehearing is presented in good faith and

not for delay, and that it is restricted to the grounds specified in Supreme Court

Rule 44.2.

Respectfully submitted, /

ad ff , -

Tithe (ba (lid 7 C

Fikreta Cenanovic

10

No. 24-7221

IN THE

Supreme Court of the United States

FIKRETA CENANOVIC, Petitioner,

Vv.

HAMDARD HEALTH ALLIANCE, Respondent,

CERTIFICATE OF SERVICE

| hereby certify that | Fikreta Cenanovic on this 31st day of October, 2025

| caused three copies of the Petition for Rehearing to be served by First Class

Mail or third-party commercial carrier on the counsel identified below, pursuant to Rule

29.5 of the Rules of this Court.

All parties required to be served have been served.

Attorney for Hamdard Center for Health and Human Services

Kristen E. Prinz

Amit Bindra

The Prinz Law Firm

] East Wacker Drive, Suite 1800

Chicago, IL 60601 a: Sf,

(312) 561-9490 v i N

Tilak C Lepr,

Fikreta Cenanovic

No, 24-7221

IN THE

Supreme Court of the United States

FIKRETA CENANOVIC, Petitioner,

v.

HAMDARD HEALTH ALLIANCE, Respondent,

CERTIFICATE OF COMPLIANCE

| hereby certify that the Petition for Rehearing contains 2,901 words and

complies with the word limitation established by Rule 33.1(g)(xv) of the Rules of this

Court.

Gh. Coane

Fikreta Cenanovic

Dated: October 31, 2025

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

Hor the Eleventh Circuit

No. 23-11411

JOSEPH SIMONE,

Plaintiff-Appellant,

VEYSUS

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”)! 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 8

I. Background?

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 RROC 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.”* 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 laterenacted WPEA abrogated Castro and permitted Simone’s suit.

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

Simone timely appealed.

Il. 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).

Ill. 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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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 US.C. §$12101 et seq., which itself prohibits

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

(referencing the ADA);? 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

[nJo 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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8 Opinion of the Court 23-11411

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

507 E3d 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 “[nJotwithstanding 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).2 These baseline

° 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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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 “[nJotwithstanding 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)@ Hv).

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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

3

‘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).'° 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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23-11411 Opinion of the Court 11

protections to federal employees.'! 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

1! 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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12 Opinion of the Court 23-11411

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

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

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

ultimately, the WPEA mandates that “[nJotwithstanding 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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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 K2d 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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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.'* 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

1 We note that, to the extent that the Secretary argues that our prior-panelprecedent 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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