UNITED STATES DISTRICT COURT 12:19 pm, No v 07, 2022 EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT ----------------------------------------------------------------------X EASTERN DISTRICT OF NEW YORK JEFFREY SCOTT STEINBERG, LONG ISLAND OFFICE ORDER Plaintiff, 22-CV-04971 (JMA) (AYS)

-against-

KATHI VIDAL, Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, 600 Dulany Street Alexandria, VA 22314,

Defendant. ----------------------------------------------------------------------X AZRACK, United States District Judge: Plaintiff Jeffrey Scott Steinberg commenced this disability discrimination action against his former employer, the Director of the United States Patent and Trademark Office (“USPTO” or “Defendant”), pursuant to the Rehabilitation Act of 1973,

et seq. (ECF No. 1.) He now seeks leave to amend his complaint to assert a claim against Defendant pursuant to the Americans with Disabilities Act (“ADA”),

et seq. (ECF No. 12.) For the following reasons, Plaintiff’s motion is DENIED. I. LEGAL STANDARD Leave to amend a pleading should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, “[l]eave to amend may properly be denied if the amendment would be futile[.]” Krys v. Pigott,

(2d Cir. 2014) (citation omitted). “A proposed amendment to a complaint is futile when it could not withstand a motion to dismiss.” F5 Capital v. Pappas,

(2d Cir. 2017) (citation omitted). II. DISCUSSION Plaintiff’s motion must be denied. His proposed ADA claim suffers from a simple, but fatal, flaw: the ADA does not apply to federal government agencies like USPTO. See

(5)(B)(i) (expressly excluding the United States from the definition of “covered” employers). As the Second Circuit has explained, a former federal government employee “has no

remedy for employment discrimination under the ADA. His sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere.” Rivera v. Heyman,

(2d Cir. 1998) (internal citation omitted). See also Henry v. McDonald,

, 588 (E.D.N.Y. 2021) (construing pro se plaintiff’s disability discrimination claim against federal government agency to be made pursuant to Section 504 of the Rehabilitation Act rather than ADA); Babin v. Dep’t of the Treasury, No. 20-CV-2702 (JMA) (SIL),

, at *13 (E.D.N.Y. Dec. 9, 2021) (“Plaintiff’s ADA claim cannot survive because Title I of the ADA does not apply to employees of federal agencies.”), report and recommendation adopted,

(E.D.N.Y. Jan. 7, 2022). Accordingly, Plaintiff’s proposed ADA claim “could not withstand a

motion to dismiss.” F5 Capital,

. As amendment would be futile, Plaintiff’s motion is denied. III. CONCLUSION For the reasons stated above, Plaintiff’s motion for leave to amend his complaint is DENIED. SO ORDERED. Dated: November 7, 2022 Central Islip, New York

/s/ (JMA) JOAN M. AZRACK UNITED STATES DISTRICT JUDGE