United States District Court, N.D. Illinois, Eastern Division
S. SHAH UNITED STATES DISTRICT JUDGE.
motion to dismiss  is granted. Count I is dismissed with
prejudice. Counts II and III are dismissed without prejudice
for lack of jurisdiction.
plaintiff Karen Scruggs's second attempt to plead her
claims. In Scruggs's original complaint, she alleged
that-without any sign that she was a security risk-TSA agents
at O'Hare International Airport subjected her to a hair
pat-down and chemical scan, took her aside for a full body
search, and detained her.  ¶¶ 1, 4, 6-8, 10,
She asserted four claims-one under the Administrative
Procedure Act, another under the Federal Tort Claims Act, and
two constitutional claims (for violations of her Fourth and
Fifth Amendment rights) under 42 U.S.C. § 1983 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). . The government
moved to dismiss the entire complaint, , and I granted
the motion in part, dismissing all but the FTCA claim. .
Scruggs amended her complaint and repleaded all four claims.
. The gist of the allegations is the same, with a few
government has answered the FTCA claim, , but moves to
dismiss the others, , arguing that Scruggs has not fixed
the defects that caused dismissal the first time around. The
government's motion is under Rule 12(b)(1) and Rule
survive the former, the complaint must plausibly allege
standing. See Silha v. ACT, Inc., 807 F.3d 169,
173-74 (7th Cir. 2015). To survive the latter, the complaint
must contain factual allegations that plausibly suggest a
right to relief. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). In resolving both motions, I consider only the
pleadings, documents incorporated by reference in the
pleadings, and matters subject to judicial notice, accepting
the well-pleaded facts as true and drawing all reasonable
inferences in Scruggs's favor. Tobey v.
Chibucos, 890 F.3d 634, 639, 648 (7th Cir. 2018);
Silha, 807 F.3d at 173.
problem with Scruggs's APA claim in the original
complaint was that she did not allege a “final agency
action.”  at 3-5. As I explained before, an
“agency action” is “the whole or a part of
an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act, ” 5
U.S.C. §§ 701(b)(2), 551(13), and to be final, the
action must “mark the consummation of the agency's
decisionmaking process” and “be one by which
rights or obligations have been determined, or from which
legal consequences will flow.” Bennett v.
Spear, 520 U.S. 154, 178 (1997) (cleaned up).
has still not identified a final agency action. She claims that
in order to do so, “discovery will be necessary.”
 at 10. Plaintiffs don't get access to discovery
without first stating a viable legal claim, and a final
agency action is a necessary component of Scruggs's APA
claim. See Dhakal v. Sessions, 895 F.3d 532, 541
(7th Cir. 2018) (affirming dismissal of APA claim where
agency decision was not a final agency action). And to the
extent Scruggs means to challenge the TSA's Checkpoint
Screening Operating Procedures, that claim would have to
brought in the court of appeals. See 49 U.S.C.
§ 46110 (court of appeals “has exclusive
jurisdiction to affirm, amend, modify, or set aside” a
TSA “order”); Roberts v. Napolitano, 798
F.Supp.2d 7, 10 (D.D.C. 2011), aff'd, 463
Fed.App'x 4 (D.C. Cir. 2012) (finding that the Screening
Checkpoint SOP is an “order” under § 46110).
Scruggs has twice attempted and failed to state a viable APA
claim, it is dismissed with prejudice. See Lee v. Ne.
Illinois Reg'l Commuter R.R. Corp., 912 F.3d 1049,
1052-53 (7th Cir. 2019).
dismissed Scruggs's first attempt at pleading
constitutional claims because she did not adequately allege
standing for prospective equitable relief, damages were not
available to her under Bivens, and she did not state
viable claims on the merits.
her Bivens claims dismissed, Scruggs now tries to
pursue damages for the alleged constitutional violations by
invoking the FTCA. But “[c]onstitutional tort claims
are not cognizable under the FTCA.” Smith v. United
States, 678 Fed.App'x 403, 406 (7th Cir. 2017)
(citing F.D.I.C. v. Meyer, 510 U.S. 471, 477-78
has not sufficiently alleged standing to pursue equitable
relief. “[T]o establish injury in fact when seeking
prospective injunctive relief, a plaintiff must allege a
‘real and immediate' threat of future violations of
their rights.” Scherr v. Marriott Int'l,
Inc., 703 F.3d 1069, 1074 (7th Cir. 2013). “Past
exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief … if
unaccompanied by any continuing, present adverse
effects.” Lujan v. Defs. of Wildlife, 504 U.S.
555, 564 (1992) (citation omitted). To establish a
“real and immediate” threat, Scruggs must fly
again, which she didn't allege in the original complaint.
Now, Scruggs alleges that she “enjoys going to
different parts of the Country at least once a year, ”
 ¶ 20, and I assume she means to say that she flies
there. But the amended complaint's allegations do not
demonstrate a realistic threat that when Scruggs flies ...