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Scruggs v. McAleenan

United States District Court, N.D. Illinois, Eastern Division

August 27, 2019

Karen Scruggs, Plaintiff,
Kevin McAleenan[1] and The United States of America, Defendants.



         Defendants' motion to dismiss [42] is granted. Count I is dismissed with prejudice. Counts II and III are dismissed without prejudice for lack of jurisdiction.


         This is 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] ¶¶ 1, 4, 6-8, 10, 19.[2] 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). [1]. The government moved to dismiss the entire complaint, [13], and I granted the motion in part, dismissing all but the FTCA claim. [37]. Scruggs amended her complaint and repleaded all four claims. [39]. The gist of the allegations is the same, with a few more details.

         The government has answered the FTCA claim, [41], but moves to dismiss the others, [42], 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 12(b)(6).

         To 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.

         APA Claim

         The problem with Scruggs's APA claim in the original complaint was that she did not allege a “final agency action.” [37] 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).

         Scruggs has still not identified a final agency action.[3] She claims that in order to do so, “discovery will be necessary.” [48] 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).

         Because 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).

         Constitutional Claims

         I 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.

         With 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 (1994)).

         Scruggs 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, ” [39] ¶ 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 ...

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