WPEA Supersedes ATSA: TSA Screeners May Sue Under the Rehabilitation Act in Federal Court (Abrogating Castro)

Introduction

This published decision from the United States Court of Appeals for the Eleventh Circuit addresses a long-controversial question at the intersection of the Transportation Security Administration’s enabling statute and federal anti-discrimination law: Can Transportation Security Officers (TSOs) bring disability discrimination and retaliation claims under the Rehabilitation Act? In Joseph Simone v. Secretary of Homeland Security (No. 23-11411, Oct. 17, 2025), the Eleventh Circuit holds that the Whistleblower Protection Enhancement Act of 2012 (WPEA), 5 U.S.C. § 2304, abrogates the court’s earlier decision in Castro v. Secretary of Homeland Security, 472 F.3d 1334 (11th Cir. 2006), and extends Rehabilitation Act protections to TSA screeners. The court vacates the district court’s dismissal and remands for consideration of administrative exhaustion.

The case arises from Joseph Simone’s removal from federal service as a TSA TSO following a determination that he was no longer medically qualified due to a heart condition. Simone brought four Rehabilitation Act claims: disability discrimination, failure to accommodate, retaliation, and interference/coercion. The district court, relying on Castro, held that the Aviation and Transportation Security Act (ATSA) precluded Rehabilitation Act claims by TSOs and dismissed the suit. On appeal, the central issues were:

• Whether the WPEA—enacted after Castro—abrogates Castro and subjects TSA screeners to Rehabilitation Act protections; and
• If so, whether such claims may proceed in federal district court (as opposed to being confined to administrative remedies).

Summary of the Opinion

The Eleventh Circuit holds that the WPEA’s text plainly confers Rehabilitation Act coverage on individuals “holding or applying for a position within the [TSA],” notwithstanding any other law. Because ATSA previously was read (in Castro) to exempt TSA security screeners from the Rehabilitation Act based on ATSA’s “notwithstanding” clause, the two statutes irreconcilably conflict. Applying ordinary interpretive principles (including the weight afforded to “notwithstanding” clauses and the later-in-time canon), the court concludes that the WPEA, enacted later and itself employing “notwithstanding” language, supersedes ATSA’s contrary provisions as construed in Castro. The panel therefore abrogates Castro and vacates the dismissal. It remands for the district court to address exhaustion, which had been left unresolved.

Analysis

1) Precedents and Authorities Cited

• Castro v. Secretary of Homeland Security, 472 F.3d 1334 (11th Cir. 2006): Held that ATSA’s “notwithstanding any other provision of law” language permitted TSA to set hiring standards for screeners without regard to the Rehabilitation Act. The Simone panel holds that the WPEA abrogates this result for TSOs.
• Statutes at issue:
  • Rehabilitation Act, 29 U.S.C. §§ 791, 794: Prohibits disability discrimination by federal agencies and incorporates Title I ADA standards; provides federal court remedies for federal employees under § 501 and § 504.
  • ATSA, 49 U.S.C. § 44935 and note: Requires TSA to establish qualification standards for screeners, and authorizes the Administrator to employ, discipline, and terminate screeners “notwithstanding any other provision of law.”
  • WPEA, 5 U.S.C. § 2304: “Notwithstanding any other provision of law,” TSA employees and applicants are covered by § 2302(b)(1), (8), and (9), and any law implementing those provisions (including the Rehabilitation Act via § 2302(b)(1)(D) and retaliation protections via § 2302(b)(9)).
  • CSRA/Personnel Protections, 5 U.S.C. § 2302(b)(1), (8), (9): Enumerates prohibited personnel practices, including discrimination based on “handicapping condition” under § 501 of the Rehabilitation Act, whistleblowing, and retaliation for exercising appeal or complaint rights.
  • ADA definition of disability, 42 U.S.C. § 12102(1): Incorporated by the Rehabilitation Act.
• Textual interpretation and “notwithstanding” clauses:
  • Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993): A “notwithstanding any other law” clause is a strong textual signal; “a clearer statement is difficult to imagine.”
  • Branch v. Smith, 538 U.S. 254 (2003): Later statute controls when statutes irreconcilably conflict.
  • NextWave Personal Communications, 537 U.S. 293 (2003): Courts endeavor to harmonize statutes where possible.
  • Scalia & Garner, Reading Law § 55: Repeals by implication are disfavored but occur where provisions flatly contradict.
• Prior panel precedent and statutory abrogation:
  • United States v. Woodard, 938 F.2d 1255 (11th Cir. 1991): A clear change in the law by Congress can justify not following earlier circuit precedent.
  • Sellers v. Rushmore Loan Management Services, 941 F.3d 1031 (11th Cir. 2019): Later statutory amendment can abrogate earlier circuit holdings.
  • United States v. Gillis, 938 F.3d 1181 (11th Cir. 2019) and United States v. Birge, 830 F.3d 1229 (11th Cir. 2016): Distinguish holdings from dicta; prior-panel-precedent rule binds only as to holdings.
  • Dorsey v. United States, 567 U.S. 260 (2012): One Congress cannot bind a later Congress; later Congress may change the law expressly or by implication.
• Statutory construction baseline:
  • POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014): Traditional tools of statutory interpretation govern; the presence of an agency does not change that.
  • Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overruled Chevron; reinforces the court’s reliance on text without deference.
  • Jimenez v. Quarterman, 555 U.S. 113 (2009): When statutory language is plain, apply it as written.
  • United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021): Statutory interpretation reviewed de novo.
• Other Rehabilitation Act/agency cases referenced:
  • Garrett v. University of Alabama at Birmingham Board of Trustees, 507 F.3d 1306 (11th Cir. 2007): Recognizes district court causes of action under the Rehabilitation Act.
  • Center v. Secretary, DHS, 895 F.3d 1295 (11th Cir. 2018): Discussed how Congress can exempt agencies via conflicting statutes; cited Castro illustratively. The Simone panel treats the reliance as dicta, not addressing WPEA.
  • Pre- and post-WPEA circuit decisions on ATSA/RA that either predate the WPEA (Field, Conyers, Joren) or fail to analyze it (Kaswatuka), and decisions acknowledging but not resolving the WPEA’s effect (Galaza, Serrano-Colón).
  • Kloeckner v. Solis, 568 U.S. 41 (2012): Cited regarding CSRA procedures, generally; relevant to forum and mixed-case channels though not determinative here.

2) The Court’s Legal Reasoning

The panel proceeds from text. The Rehabilitation Act prohibits disability discrimination by executive agencies and adopts Title I ADA standards. ATSA, enacted after 9/11, empowered TSA to set stringent aptitude and physical standards for screeners “notwithstanding any other provision of law,” and authorized broad personnel actions (employ, discipline, terminate) for screening functions with similar “notwithstanding” text. In Castro, the Eleventh Circuit read that ATSA language to permit TSA to depart from Rehabilitation Act requirements when establishing screening criteria.

The WPEA changed the legal landscape. Congress declared—again using “notwithstanding any other provision of law”—that individuals holding or applying for TSA positions “shall be covered by”:

• § 2302(b)(1): which includes discrimination based on a “handicapping condition” under § 501 of the Rehabilitation Act (29 U.S.C. § 791);
• § 2302(b)(8): whistleblower protections; and
• § 2302(b)(9): protections against retaliation for exercising appeal, complaint, or grievance rights (capturing EEO activity, including Rehabilitation Act complaints).

Section 2304 expressly incorporates “any provision of law implementing § 2302(b)(1), (8), or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service.” That language brings with it the Rehabilitation Act’s federal-sector enforcement scheme, including district court remedies.

The panel treats the competing “notwithstanding” clauses as producing an irreconcilable conflict with respect to TSA screeners: ATSA (as read in Castro) permitted TSA to ignore the Rehabilitation Act for screeners; WPEA mandates that TSA employees and applicants are covered by the Rehabilitation Act and associated remedies. In such a conflict, the later statute controls. Citing Cisneros and the later-in-time canon, and acknowledging that while “repeals by implication” are disfavored, they occur where provisions flatly contradict, the court holds the WPEA supersedes the contrary reading of ATSA.

The panel rejects four counterarguments:

1. Castro’s suggestion that ATSA prevails over “subsequently enacted” law: That statement was dicta. Castro addressed only ATSA’s effect on earlier statutes that lacked a “notwithstanding” clause; it did not adjudicate a head-to-head conflict with a later statute also using “notwithstanding” text. Courts cannot tie the hands of later Congresses.
2. Reliance on post-WPEA Eleventh Circuit dicta in Center: Center merely cited Castro as an example of a congressional carveout; it did not consider WPEA’s effect on ATSA, rendering the reference nonbinding dicta.
3. Harmonization by limiting WPEA to administrative remedies only: The government urged reading WPEA to restore only certain remedial rights that are vindicated administratively (with judicial review in the Federal Circuit), preserving ATSA’s bar on district court Rehabilitation Act suits. The court finds the statutes “not capable of co-existence” in this manner. Section 2304’s incorporation of any law “providing any right or remedy” in the civil service, together with the Rehabilitation Act’s district court cause of action, forecloses the administrative-only narrowing.
4. Consensus in other circuits: The government’s reliance on cases either predating the WPEA, ignoring it, or declining to reach it (including decisions from the First, Second, Fifth, Seventh, and Ninth Circuits) is unpersuasive on the specific question presented. No contrary square holding was identified.

Having concluded that the WPEA abrogates Castro and restores Rehabilitation Act coverage to TSA screeners, the court vacates and remands. It declines to reach the Secretary’s alternative argument that Simone failed to exhaust administrative remedies, leaving that issue for the district court in the first instance.

3) Impact and Implications

This decision resets the legal framework for TSA screeners in the Eleventh Circuit, with several immediate and longer-term consequences.

• Rehabilitation Act coverage for TSOs and other TSA personnel: The court’s reading of § 2304 applies to “any individual holding or applying for a position within TSA,” not only screeners. The opinion’s core conflict analysis is framed around screeners because ATSA’s “notwithstanding” carveout was tied to screening functions, but the WPEA’s coverage is broader. At a minimum, TSOs can assert Rehabilitation Act discrimination, failure-to-accommodate, and retaliation claims in federal district court, subject to exhaustion.
• Abrogation of Castro’s exemptive rule: Within the Eleventh Circuit, agencies and courts may no longer rely on Castro to deny TSA screeners access to Rehabilitation Act protections. Policies and litigation positions premised on ATSA’s categorical exemption need revision.
• Forum and procedure clarified: By remanding for exhaustion, the panel implicitly recognizes the availability of the Rehabilitation Act’s federal court remedies for TSA employees and applicants. Practitioners should follow federal-sector EEO procedures (initial contact, counseling, formal complaint, EEOC/agency adjudication) and heed applicable filing deadlines before filing suit.
• Substantive standards re-centered on ADA Title I: Because the Rehabilitation Act adopts Title I ADA standards, TSA may still maintain stringent, safety-related qualification standards, but those standards must be job-related and consistent with business necessity, incorporate individualized assessment, and be administered in a non-discriminatory manner. Defenses like “direct threat” and “undue hardship” remain available, but categorical exclusions based solely on disability will now face meaningful scrutiny.
• Retaliation claims strengthened: The WPEA’s incorporation of § 2302(b)(9) ensures coverage for retaliation based on EEO activity—e.g., filing Rehabilitation Act complaints or seeking accommodations—by TSA personnel, including TSOs.
• Inter-circuit dynamics: The Eleventh Circuit appears to be the first appellate court to squarely hold that the WPEA abrogates ATSA’s previously recognized carveout for screeners. Other circuits may follow, or a split could emerge if a court reads WPEA differently. The opinion’s textual approach—post–Loper Bright—may be particularly persuasive.
• Agency policy and training: TSA will likely revisit medical qualification standards, accommodation processes, and EEO training for screening personnel to ensure alignment with ADA/Rehabilitation Act standards. Expect increased focus on individualized assessments, interactive processes, and documentation.
• Legacy cases and timing: The WPEA became law in 2012. Adverse actions and claims arising after that date within the Eleventh Circuit now clearly fall under Rehabilitation Act coverage; earlier events are governed by pre-WPEA law. On remand in Simone, timeliness and exhaustion will be key.

Complex Concepts Simplified

• “Notwithstanding any other provision of law”: A powerful textual command. It tells courts to apply that statute even if other laws point in a different direction. When two statutes both contain “notwithstanding” clauses and conflict, the later one usually controls.
• Abrogation by statute vs. overruling by court: A circuit panel is bound by prior panel decisions unless a later Supreme Court or en banc decision intervenes—or unless Congress changes the governing law. Here, the Eleventh Circuit holds that Congress’s later enactment (the WPEA) abrogates the earlier panel decision in Castro.
• Repeal by implication: Courts disfavor implied repeals, but if two statutes are flatly inconsistent, the later statute prevails to the extent of the conflict.
• Rehabilitation Act basics: For federal employees, the Act prohibits disability discrimination, requires reasonable accommodation of qualified individuals, and bars retaliation. It adopts Title I ADA standards, including “qualified individual,” “essential functions,” “interactive process,” “undue hardship,” and “direct threat.”
• Exhaustion of administrative remedies: Federal employees generally must pursue administrative EEO processes (contacting an EEO counselor promptly, filing a formal complaint, and awaiting final agency action or specified time periods) before suing in federal court. Whether a plaintiff exhausted is a threshold question often litigated early.
• CSRA and WPEA interplay: The CSRA creates broad federal personnel frameworks, including prohibited personnel practices (§ 2302(b)). The WPEA makes clear that TSA employees and applicants are covered by certain CSRA protections and any implementing laws that provide rights or remedies—explicitly sweeping in the Rehabilitation Act.

Conclusion

The Eleventh Circuit’s decision establishes an important rule: The WPEA’s “notwithstanding” directive and incorporation of Rehabilitation Act protections supersede ATSA’s earlier exemption for TSA screeners as understood in Castro. TSOs—indeed, TSA employees and applicants—are now plainly “covered by” the Rehabilitation Act within the Eleventh Circuit and may pursue district court remedies, subject to administrative exhaustion. The ruling reflects a straightforward textual approach, reinforced by later-in-time and anti-dicta principles, and resonates with post–Loper Bright statutory interpretation.

Practically, TSA must calibrate qualification standards and employment decisions affecting screeners to comply with ADA/Rehabilitation Act norms, including individualized assessments and reasonable accommodations, while maintaining aviation security imperatives. For litigants, the path to federal court is open where administrative requirements are satisfied. For the law, the opinion clarifies the role and limits of “notwithstanding” clauses and underscores Congress’s authority to reshape the legal landscape by statute—even in highly specialized security contexts.