United States Court of Appeals 

for the Fifth Circuit 

No. 20-10632 

Dina Senga Kaswatuka, 

Plaintiff—Appellant, 

versus

 

United States Department of Homeland Security, 

Defendant—Appellee. 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:19-CV-947-A 

Before Stewart, Costa, and Willett, Circuit Judges.

Carl E. Stewart, Circuit Judge:

Plaintiff-Appellant Dina Senga Kaswatuka appeals the district court’s 

grant of summary judgment against her in her employment discrimination 

suit. We AFFIRM.

I. Facts & Procedural History 

Kaswatuka worked at the Dallas Fort Worth International Airport as 

a security officer for the Department of Homeland Security Transportation 

Security Administration (“TSA”). She alleges that she was discriminated 

against on account of her race, national origin, sex, and disability. She sued 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 2, 2021 

Lyle W. Cayce 

Clerk 

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DHS under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. 

§§ 2000e et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. 

§§ 12112 et seq., and 42 U.S.C. § 1983. 

DHS filed a motion to dismiss for lack of subject-matter jurisdiction 

and for failure to state a claim pursuant to Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6). Kaswatuka did not file a response, and the district 

court granted DHS’s motion. Plaintiff now appeals. 

II. Discussion 

We review the district court’s grant of a motion to dismiss for lack of 

subject-matter jurisdiction and for failure to state a claim de novo. See 

Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762–63 (5th Cir. 

2011). When a defendant raises lack of subject-matter jurisdiction in a motion 

to dismiss, the plaintiff bears the burden of establishing jurisdiction. See id. at 

762. In reviewing a district court’s dismissal for failure to state a claim, we 

accept well-pleaded facts as true and view those facts in the light most 

favorable to the plaintiff. Id. at 763. However, a complaint is properly 

dismissed if the plaintiff fails to plead sufficient facts “to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

We will review each of Kaswatuka’s arguments and claims in turn. 

1. Waiver 

Kaswatuka never responded to DHS’s motion to dismiss. On appeal, 

she raises arguments that she did not make before the district court, such as 

her claim that the district court could exercise jurisdiction under the Uniform 

Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 

4301 et seq. “[A]rguments not raised before the district court are waived and 

will not be considered on appeal unless the party can demonstrate 

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‘extraordinary circumstances.’” State Indus. Prods. Corp. v. Beta Tech., Inc., 

575 F.3d 450, 456 (5th Cir. 2009) (citations omitted). As Kaswatuka did not 

respond to the motion to dismiss, Kaswatuka’s appellate arguments are 

limited to “urging that the grounds given by the district court for dismissing 

her complaint are wrong.” Walker v. S. Cent. Bell Tel. Co., 904 F.2d 275, 276 

n.1 (5th Cir. 1990) (per curiam), superseded by statute on other grounds, Civil 

Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, as recognized in 

CBOCS W. Inc. v. Humphries, 553 U.S. 442, 450 (2008).

Kaswatuka argues that she lacked notice of DHS’s motion to dismiss. 

She states that she “never received a copy from the defendant,” and 

references a defect in the electronic filing system, but also states that “all 

filing notices were entered by the Clerk and delivered” and that the “Judge, 

court, and clerk communicated with plaintiff by mail.” The record reflects 

that the Assistant United States Attorney attested that she served the motion 

on Kaswatuka by certified mail at the address provided. Given that the record 

demonstrates that Kaswatuka did have notice of the motion to dismiss filed 

against her, and Kaswatuka has not demonstrated the presence of 

extraordinary circumstances, Kaswatuka’s arguments unrelated to the 

grounds on which her claims were dismissed are waived. 

2. ADA Claim 

 Kaswatuka brought a claim under the ADA. While the ADA “applies 

only to public entities,” such as private employers, Kaswatuka’s claim could 

theoretically be construed as a claim under the Rehabilitation Act of 1973, 29 

U.S.C. § 794, which prohibits disability discrimination in federally-funded 

programs. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). “The provisions 

of the ADA are made applicable to federal employees through the 

Rehabilitation Act.” Crawford v. U.S. Dep’t of Homeland Sec., 245 F. App’x 

369, 380 n.6 (5th Cir. 2007). However, the Aviation and Transportation 

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Security Act (“ATSA”), 49 U.S.C. § 44935, precludes any claim of disability 

discrimination. 

 The ATSA was enacted following the attacks of September 11, 2001 

and established the TSA. See Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 

2011); 49 U.S.C. § 114. The ATSA affords the TSA Administrator discretion 

in developing employment standards for airport security screeners. Id. § 

114(e). The ATSA states that “[t]he Administrator shall establish 

qualification standards for individuals to be hired . . . as security screening 

personnel. Notwithstanding any other provision of law, those standards shall 

require, at a minimum, an individual . . . to meet such other qualifications as 

the Administrator may establish[.]” 49 U.S.C. § 44935(e)(2)(A)(iv) 

(emphasis added). It also explains that “[n]otwithstanding any other 

provision of law,” screeners must “possess basic aptitudes and physical 

abilities, including color perception, visual and aural acuity, physical 

coordination, and motor skills[.]” 49 U.S.C. § 44935(f)(1)(B). 

“[T]he use of . . . a ‘notwithstanding’ clause clearly signals the 

drafter’s intention that the provisions of the ‘notwithstanding’ section 

override conflicting provisions of any other section.” Cisneros v. Alpine Ridge 

Grp., 508 U.S. 10, 18 (1993). As sections of the ATSA conflict with the 

Rehabilitation Act, many courts have held that “the language of the ATSA 

plainly precludes security screeners from bringing suit under certain of the 

federal employment statutes . . . including the Rehabilitation Act.” See Field 

v. Napolitano, 663 F.3d 505, 512 (1st Cir. 2011); see also Coleman v. Sec’y U.S. 

Dep’t of Homeland Sec., 649 F. App’x 128, 129–30 (3d Cir. 2016) (agreeing 

with the district court that it lacked subject-matter jurisdiction because the 

ATSA precludes TSA officers from bringing claims under the Rehabilitation 

Act); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011) (“We now join 

every other circuit to have considered the question and conclude that the 

plain language of the ATSA preempts application of the Rehabilitation Act 

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to security screeners”); Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 

(11th Cir. 2006) (“The plain language of the ATSA indicates that TSA need 

not take the requirements of the Rehabilitation Act into account when 

formulating hiring standards for screeners.”). We therefore agree with the 

district court that Kaswatuka cannot proceed with a Rehabilitation Act claim 

as it is precluded by the ATSA. 

3. 42 U.S.C. § 1983 Claim 

Kaswatuka also sued DHS under § 1983, which confers liability on 

“[e]very person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of the United States or other 

person within the jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities secured by the Constitution and laws.”42 U.S.C. § 

1983. 

 “[T]itle VII provides the exclusive remedy for employment 

discrimination claims raised by federal employees.” Jackson v. Widnall, 99 

F.3d 710, 716 (5th Cir. 1996) (citing, inter alia, Brown v. Gen. Servs. Admin., 

425 U.S. 820, 835 (1976)). This court has held that to the extent that 

allegations of constitutional violations “arise out of the same facts” as 

employment discrimination allegations, they are preempted by Title VII. Id. 

This court has also specifically held that employment discrimination claims 

under § 1983 are preempted by Title VII. See Rolland v. U.S. Dep’t of Veterans 

Affs., 146 F. App’x 743, 746 (5th Cir. 2005) (per curiam) (citing Jackson, 99 

F.3d at 710). Kaswatuka’s allegations of constitutional violations arise under 

the same set of facts as her claims of employment discrimination. Therefore, 

the district court properly determined that her § 1983 claim is preempted by 

Title VII. 

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4. Title VII Claim 

Kaswatuka also sued DHS under Title VII. However, the proper 

defendant in a Title VII claim is “the head of the department, agency, or unit, 

as appropriate.” 42 U.S.C. § 2000e–16(c). Because Kaswatuka failed to 

name the Acting Secretary of the Department of Homeland Security as a 

defendant, the district court had “no alternative but to dismiss the case for 

lack of a proper party defendant.” Quevedo v. Army & Air Force Exch. Serv., 

234 F.3d 29, at *1 (5th Cir. 2000) (unpublished) (per curiam). As we have 

noted, “[a] pro se party is in no way exempted from compliance with the 

relevant rules of procedure and substantive law.” Id. 

III. Conclusion 

For the foregoing reasons, we AFFIRM the judgment of the district 

court. 

 

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