Scruggs v. United States of America

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KAREN SCRUGGS,

Plaintiff,

No. 18 CV 2109

v.

Judge Manish S. Shah

KIRSTJEN NIELSEN, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

TSA agents searched and detained plaintiff Karen Scruggs at the airport.

Scruggs, an African American woman, brings claims against the unknown TSA

agents, Kathleen Petrowsky (the airport’s Federal Security Director), the Secretary

of the Department of Homeland Security, and the United States, alleging

constitutional violations and claims under the Administrative Procedure Act and the

Federal Tort Claims Act. The government (the United States and the DHS Secretary)

and Petrowsky (in her individual capacity) move to dismiss the complaint.1 For the

reasons explained below, Petrowsky’s motion is granted, and the government’s

motion is granted in part, denied in part.

I. Legal Standards

The government moves to dismiss the complaint under Rule 12(b)(1), and all

defendants move to dismiss it under Rule 12(b)(6). To survive the former motion, the

complaint must plausibly allege standing. See Silha v. ACT, Inc., 807 F.3d 169, 173–

1 The unknown TSA agents have not been served.

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 173.2

II. Facts

Karen Scruggs is an African American woman who was on her way to catch a

plane to Fort Lauderdale at O’Hare International Airport. [1] ¶¶ 1–2.3 At the security

checkpoint, Scruggs went through a full-body scanner, and then TSA agents4 took

her aside and patted down her hair, with no explanation. [1] ¶¶ 3–5. Scruggs had

been through these hair pat-downs in airport security before. [1] ¶ 18. The agents

next performed a chemical scan. [1] ¶ 6. Afterwards, a TSA agent took Scruggs to a

nearby room, where agents asked her harassing questions, refused to answer her

questions, and made her believe that Chicago police officers were coming to arrest

2 The government does not submit any evidence in support of its Rule 12(b)(1) motion, so I

assume it is a facial challenge to jurisdiction. See Apex Digital, Inc. v. Sears, Roebuck & Co.,

572 F.3d 440, 444 (7th Cir. 2009) (“In the context of facial challenges … the court does not

look beyond the allegations in the complaint.”).

3 Bracketed numbers refer to entries on the district court docket. Page numbers are taken

from the CM/ECF header at the top of filings. Facts are taken from the complaint, [1].

4 The complaint interchangeably uses the labels “agent,” “officer,” and “official” to describe

the TSA employees who interacted with Scruggs. See, e.g., [1] ¶¶ 7–9. I will use the more

inclusive term “agent” to describe them, since, as we will see, “officer” has special meaning

for the FTCA claim.

her. [1] ¶¶ 7, 45–46. The TSA agents would not let Scruggs leave and kept her in the

room for some time before eventually letting her go. [1] ¶¶ 10–12. No one ever told

Scruggs why she had been detained. [1] ¶ 13. There is no allegation that Scruggs

missed her flight. On Scruggs’s way home from Fort Lauderdale, a TSA agent again

performed an unexplained pat-down of her hair. [1] ¶¶ 14–17. The TSA agents had

no reason to believe that Scruggs posed a safety threat during these interactions. [1]

¶ 19.

III. Analysis

A. Administrative Procedure Act

The APA provides that a “final agency action for which there is no other

adequate remedy in a court” is “subject to judicial review.” 5 U.S.C. § 704. The

government characterizes the APA’s “final agency action” requirement as a

jurisdictional one, but § 704 is not jurisdictional. See Matushkina v. Nielsen, 877 F.3d

289, 292 n.1 (7th Cir. 2017). See also Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,

161 (2010).

The complaint does not allege a final agency action. Scruggs argues that the

final agency action at issue is the “detention and interrogation” of Scruggs, but

“agency action” is a defined term, not just any action taken by an agency. The APA

defines an “agency action” to include “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 the TSA agents’ alleged conduct toward Scruggs is none of

those. Nor does the conduct meet the finality requirements. See Bennett v. Spear, 520

U.S. 154, 178 (1997) (explaining that to be final, the agency 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”

(cleaned up)). Scruggs has not stated an APA claim.

Even if Scruggs had adequately alleged a final agency action, this court would

likely have lacked jurisdiction over the claim. The court of appeals has exclusive

jurisdiction over the review of a TSA “order,” 49 U.S.C. § 46110, and courts have

interpreted “order” to have a similar meaning to “final agency action” under the APA.

See Gilmore v. Gonzales, 435 F.3d 1125, 1132 (9th Cir. 2006) (“‘Order’ carries a note

of finality, and applies to any agency decision which imposes an obligation, denies a

right, or fixes some legal relationship.” (citation omitted)). As a result, the daylight

between the two (if any) is narrow, and most (if not all) APA claims seeking review of

the TSA’s final actions must be brought in the court of appeals. See, e.g., Promptair,

Inc. v. Hinson, No. 96 C 6282, 1996 WL 680005, at *5 (N.D. Ill. Nov. 21, 1996)

(“[T]here is no gap between the courts’ of appeals jurisdiction over FAA orders, and

the district courts’ general jurisdiction over agency orders.”).

Here, it is not clear from the complaint that Scruggs is challenging a TSA final

order. The government contends that the TSA’s screening procedures are governed

by a document called the Checkpoint Screening Standard Operating Procedures,

which it argues is a final order reviewable only by the court of appeals, but the

government has not submitted evidence about what the SOP says or if the TSA agents

were acting according to it when they searched Scruggs.5 Scruggs may have no issue

5 The SOP is a confidential document that is not publicly available. See Blitz v. Napolitano,

700 F.3d 733, 736 (4th Cir. 2012). But in many of the cases that the government cites, there

with the SOP itself but rather challenge how defendants chose to apply it to her or

their failure to comply with its mandates. Based only on the pleadings, I cannot

conclude whether Scruggs’s complaint challenges the SOP or whether her claims are

inescapably intertwined with such a challenge. See Merritt v. Shuttle, Inc., 245 F.3d

182, 187 (2d Cir. 2001) (Section 46110 “also preclude[s] district courts from hearing

claims that are ‘inescapably intertwined’ with review of such orders.”). But if Scruggs

attempts to replead her APA claim, she should identify the specific final agency action

at issue, so that jurisdiction can be determined.

B. Federal Tort Claims Act

Scruggs brings claims against the United States for the torts of false arrest

and false imprisonment. The United States is immune from suit unless it consents to

be sued. See United States v. Mitchell, 445 U.S. 535, 538 (1980). Through the FTCA,

the United States has waived its sovereign immunity with respect to its employees’

torts, with some exceptions. 28 U.S.C. § 1346(b)(1). One of those exceptions covers

certain intentional torts, including those that Scruggs claims here. 28 U.S.C.

§ 2680(h). The government argues that the intentional-tort exception bars Scruggs’s

FTCA claims.6 But Scruggs invokes the “law-enforcement proviso”—an exception to

was at least a declaration generally explaining the SOP’s contents as they related to the

complaint’s allegations. See id.; Redfern v. Napolitano, No. CIV.A. 10-12048-DJC, 2011 WL

1750445, at *1 (D. Mass. May 9, 2011), vacated and remanded on other grounds, 727 F.3d 77

(1st Cir. 2013); Roberts v. Napolitano, 798 F.Supp.2d 7, 9 (D.D.C. 2011), aff’d, 463 Fed.App’x

4 (D.C. Cir. 2012); Green v. Transportation Sec. Admin., 351 F.Supp.2d 1119, 1121 (W.D.

Wash. 2005). The government has not submitted such a declaration here.

6 Sovereign immunity is a waivable defense, not a jurisdictional bar. See Meyers v. Oneida

Tribe of Indians of Wisconsin, 836 F.3d 818, 822 (7th Cir. 2016); Parrott v. United States, 536

F.3d 629, 634 (7th Cir. 2008) (“[W]hat sovereign immunity means is that relief against the

United States depends on a statute; the question is not the competence of the court to render

the exception under which the United States waives immunity for intentional torts

committed by “investigative or law enforcement officers.” Id. “Investigative or law

enforcement officer” is defined as “any officer of the United States who is empowered

by law to execute searches, to seize evidence, or to make arrests for violations of

Federal law.” Id. So, the question is whether the TSA agents are “investigative or law

enforcement officers.”

The TSA agents who carry out the TSA’s duty to screen “all passengers and

property … that will be carried aboard a passenger aircraft,” 49 U.S.C. § 44901(a),

are called Transportation Security Officers. See [14] at 16. The TSA Administrator is

also authorized to designate employees to be “law enforcement officers,” which gives

them the authority to carry firearms, make arrests, and seek and execute warrants.

49 U.S.C. § 114(p). It appears to be undisputed that the latter category of TSA agent

is an “investigative or law enforcement officer” within the meaning of the proviso.7

The dispute is instead over TSOs and whether they are officers who are “empowered

by law to execute searches … for violations of Federal law.” See Bunch v. United

States, 880 F.3d 938, 944 (7th Cir. 2018) (“[S]ection 2680(h) refers to both

investigative and law-enforcement officers, and it defines both types of officer as a

a binding judgment, but the propriety of interpreting a given statute to allow particular

relief.”).

7 To the extent the government argues that even a designated TSA law-enforcement officer

would not fall within the proviso’s scope if she were on screener duty at a checkpoint, that

argument fails. See Millbrook v. United States, 569 U.S. 50, 57 (2013) (“[T]he waiver effected

by the law enforcement proviso extends to acts or omissions of law enforcement officers that

arise within the scope of their employment, regardless of whether the officers are engaged in

investigative or law enforcement activity, or are executing a search, seizing evidence, or

making an arrest.”).

person with legal authority to ‘execute searches, to seize evidence, or to make arrests.’

Any one of those three powers will do.” (emphasis in original) (citation omitted)).

As the government points out, most courts that have addressed the issue have

found that TSOs do not fall within the scope of the law-enforcement proviso. See, e.g.,

Corbett v. Transportation Sec. Admin., 568 Fed.App’x 690, 701 (11th Cir. 2014);

Hernandez v. United States, 34 F.Supp.3d 1168, 1182 (D. Colo. 2014); Walcott v.

United States, No. 13-CV-3303, 2013 WL 5708044, at *2 (E.D.N.Y. Oct. 18, 2013);

Weinraub v. United States, 927 F.Supp.2d 258, 266 (E.D.N.C. 2012). A panel of the

Third Circuit held that the law-enforcement proviso “refers only to officers with

criminal law enforcement powers” and so does not apply to TSOs who “only conduct

administrative searches and do not have such powers.” Pellegrino v. United States

Transportation Sec. Admin., Div. of Dep’t of Homeland Sec., 896 F.3d 207, 216 (3d

Cir. 2018). But the court vacated the opinion and re-heard the case en banc, and it

has yet to issue an opinion. Pellegrino v. United States of Am. Transportation Sec.

Admin., 904 F.3d 329 (3d Cir. 2018). Scruggs refers to Armato v. Doe 1, No. CV-11-

02462-PHX-ROS, 2012 WL 13027047 (D. Ariz. May 15, 2012), where the court found

that airport screenings are statutorily-authorized searches, so TSOs fall within the

proviso’s scope.

The question is premature and inadequately developed at this point in the

litigation. The intentional-tort exception is an affirmative defense. Bunch, 880 F.3d

at 941. Complaints do not have to anticipate and plead around affirmative defenses,

so dismissal at this stage based on such a defense is inappropriate unless the

complaint pleads all the facts necessary to satisfy it. United States v. Lewis, 411 F.3d

838, 842 (7th Cir. 2005). The complaint alternates between describing those who

searched and detained Scruggs as “agents,” “officers,” and “officials,” and none of

those labels establishes the title or authority of the alleged tortfeasors. The agents

could have been designated law-enforcement officers (in which case the proviso would

apply and immunity would be waived) or they could have been TSOs. So even if I

were to now conclude that TSOs are not “investigative or law enforcement officers”

as a matter of law, the question would remain whether the TSA agents who interacted

with Scruggs were TSOs, and this factual question precludes dismissal.

C. Constitutional Claims

Scruggs brings claims based on the violation of her Fourth and Fifth

Amendment rights against the government and its officials for injunctive relief and

declaratory relief and against Petrowsky (and unknown TSA agents) for damages.

1. Equitable Relief

One of Article III’s jurisdictional requirements is an injury in fact that is

“concrete and particularized” and “actual or imminent, not conjectural or

hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 180 (2000). “[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). See also

Sierakowski v. Ryan, 223 F.3d 440, 443 (7th Cir. 2000) (“[T]he Supreme Court has

made clear that in order to invoke Article III jurisdiction a plaintiff in search of

prospective equitable relief must show a significant likelihood and immediacy of

sustaining some direct injury.”). “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).

Scruggs does not adequately allege that she has concrete plans to fly again or

that when she does, she will again suffer the constitutional violations alleged in the

complaint. Scruggs says that “she will fly,” [25] at 25, but that fact is not alleged in

the complaint, nor is it accompanied by an explanation of when. “Such ‘some day’

intentions—without any description of concrete plans, or indeed even any

specification of when the some day will be—do not support a finding of [an] ‘actual or

imminent’ injury.” Lujan, 504 U.S. at 564 (emphasis in original). And the complaint’s

allegations about the risk of future injury if she does fly again are too speculative. See

[1] ¶ 22 (hair pat-downs are “widespread and continuing”); ¶ 53 (“unwarranted hair

pat downs and arrest and detentions of African Americans continue to this date”);

¶ 55 (without court intervention, “it is likely that Ms. Scruggs … will again be

subjected to unconstitutional searches and seizures by TSA agents”). See also City of

Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (plaintiff lacked standing for prospective

equitable relief against the use of chokeholds by police officers absent a threat of

deadly force even where he alleged that the police “routinely” used chokeholds under

those circumstances). Nor does the claim that “each day” other African American

travelers are subjected to discrimination in the screening process establish Scruggs’s

standing to seek injunctive relief. See Warth v. Seldin, 422 U.S. 490, 498 (1975) (“The

Art. III judicial power exists only to redress or otherwise to protect against injury to

the complaining party.”).

Because Scruggs has not alleged a “real and immediate” threat of future harm,

she lacks standing to pursue equitable relief on her constitutional claims.

2. Damages

Scruggs seeks to recover damages from Petrowsky and others for the alleged

constitutional violations based on 42 U.S.C. § 1983 and Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Scruggs concedes

that § 1983 does not apply to Petrowsky because she is a federal official, so that leaves

Bivens.8

The Bivens remedy is an implied damages remedy for a limited group of

constitutional violations. See Ziglar v. Abbasi, 137 S.Ct. 1843, 1854–57 (2017). To

determine whether the Bivens remedy is available, courts must decide (1) whether it

would be an extension of the remedy into a new context and (2) if so, whether special

factors counsel hesitation. Id. at 1857. Scruggs’s allegations against Petrowsky “bear

little resemblance to the three Bivens claims the Court has approved in the past: a

claim against FBI agents for handcuffing a man in his own home without a warrant;

a claim against a Congressman for firing his female secretary; and a claim against

prison officials for failure to treat an inmate’s asthma,” id. at 1860, all of which are

claims against the officials who directly committed the constitutional violations. And

8 The unknown TSA agents, as best as I can infer from Scruggs’s complaint, were federal

agents too, so no § 1983 claim exists against them either.

here, the expansion of Bivens would be into the national-security context, which

counsels hesitation for a host of reasons. See Vanderklok v. United States, 868 F.3d

189, 205–09 (3d Cir. 2017) (explaining the special-factor considerations of extending

Bivens to the TSA for First Amendment retaliation). Bivens is not available against

Petrowsky.9

But even if the Bivens remedy were available, Petrowsky would have qualified

immunity from the claim. “Qualified immunity is an affirmative defense, but the

plaintiff carries the burden of defeating it once it is raised. To defeat the qualified

immunity defense, a plaintiff must show: (1) that the defendant violated a

constitutional right, and (2) that the right was clearly established at the time so that

it would have been clear to a reasonable officer that her conduct was unlawful in the

situation.” Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017) (citation omitted). See

also Doe v. Vill. of Arlington Heights, 782 F.3d 911, 915–16 (7th Cir. 2015) (qualified

immunity should be resolved at the earliest possible stage, which is sometimes the

pleadings stage).

The complaint’s only allegations about Petrowsky’s conduct are that she

“participated in and implemented the hair pat downs and … participated in, or knew

or should have known, of the searches, arrest, and detention of Scruggs.” [1] ¶ 32. See

9 Nor is it available against the unidentified TSA agents. Although they are alleged to have

directly committed the searches and seizures, the searches were in the security-screening

context; no court has applied Bivens to these administrative, special-needs searches and it

would be an extension to do so now. On top of that, the added national-security issues apply

to the TSA agents just as they do to Petrowsky. Scruggs may not pursue a Bivens claim

against the unknown TSA agents.

Ziglar, 137 S.Ct. at 1860 (“A Bivens claim is brought against the individual official

for his or her own acts, not the acts of others. The purpose of Bivens is to deter the

officer. Bivens is not designed to hold officers responsible for acts of their

subordinates.” (cleaned up) (citation omitted)); Iqbal, 556 U.S. at 676 (“Because

vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead

that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.”). Scruggs’s conclusory allegations are not

supported by facts and are insufficient to make plausible her claim that Petrowsky

violated her constitutional rights.10 Iqbal, 556 U.S. at 678–79 (Rule 8 “does not unlock

the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

Nor has Scruggs pointed to any case law demonstrating that if Petrowsky did in fact

implement the hair pat-down policy or know about Scruggs’s search and detention

that it was “beyond debate” that such actions were illegal. Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011). Scruggs’s citations to general propositions of law about

unconstitutional racial discrimination are insufficient. See Mullenix v. Luna, 136

S.Ct. 305, 308 (2015) (cautioning courts “not to define clearly established law at a

high level of generality” but rather to focus on “whether the violative nature of the

particular conduct is clearly established” (emphasis in original) (citations omitted)).11

10 Even if Scruggs’s conclusions were true, they would not be enough to establish Petrowsky’s

liability for an equal-protection claim. See Iqbal, 556 U.S. at 677 (“purpose rather than

knowledge” is required to impose Bivens liability for unconstitutional discrimination).

11 The unknown TSA agents are entitled to qualified immunity too. No case clearly

establishes that administrative airport searches that involve suspicionless hair pat-downs

and brief detentions violate the Fourth Amendment or that airport screenings with a

disparate racial impact violate the Fifth Amendment.

3. Merits

Since Scruggs lacks standing to pursue equitable relief on her constitutional

claims and a Bivens remedy is not available for her to pursue damages, it is not

necessary for me to reach the merits of the claims. But if Scruggs seeks to amend her

complaint, some discussion of the merits might be helpful to the parties.

a. Fourth Amendment

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons … and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV. Usually, a search must be based on “individualized suspicion of

wrongdoing” to be reasonable, but there are exceptions to that rule when the

government has “special needs.” Chandler v. Miller, 520 U.S. 305, 313 (1997). Airport

security is one such special-needs context, and airport screenings are “administrative

searches” that do not require individualized suspicion. See, e.g., Elec. Privacy Info.

Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 10 (D.C. Cir. 2011); United States v.

Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc); United States v. Hartwell, 436

F.3d 174, 181 (3d Cir. 2006). See also Chandler, 520 U.S. at 323 (“[W]here the risk to

public safety is substantial and real, blanket suspicionless searches calibrated to the

risk may rank as ‘reasonable’—for example, searches now routine at airports.”). But

there are limits to airport screenings—they must be reasonable. See Illinois v.

Lidster, 540 U.S. 419, 427 (2004) (judging the reasonableness of a checkpoint search

by looking to “the gravity of the public concerns served by the seizure, the degree to

which the seizure advances the public interest, and the severity of the interference

with individual liberty” (citation omitted)).

The complaint does not plausibly allege that the search and detention of

Scruggs was unreasonable. The factual allegations instead demonstrate that the

search and seizure were minimally invasive. Nothing about the allegations suggests

that the hair pat-downs were unreasonably intrusive or invasive of privacy, and they

caused no meaningful delay in Scruggs’s travel. Though an unreasonably long

detention could be unconstitutional, see George v. Rehiel, 738 F.3d 562, 579 (3d Cir.

2013), Scruggs does not allege how long she was detained and her conclusory

allegation that the detention was “unreasonably” long, [1] ¶ 10, need not be accepted

as true. The absence of any allegation of a harmful delay suggests that the detention

was brief and merely inconvenient (albeit conducted by rude TSA agents)—a not

unreasonable occurrence at an airport. Scruggs’s allegation that the TSA agents had

no grounds for suspicion (which often justify secondary screenings) may suggest that

the secondary search and seizure did not greatly advance the public interest, but that

is not enough to make the mild intrusion to Scruggs’s liberty unreasonable in the face

of the indisputably grave and important interests served by airport screenings.

To the extent Scruggs challenges the reasonableness of her search and seizure

on the grounds that she was singled out because of her race, that argument does not

implicate the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 813

(1996) (“[T]he Constitution prohibits selective enforcement of the law based on

considerations such as race. But the constitutional basis for objecting to intentionally

discriminatory application of laws is the Equal Protection Clause, not the Fourth

Amendment.”).

b. Fifth Amendment

The Fifth Amendment “prohibit[s] the United States from invidiously

discriminating between individuals or groups.” Washington v. Davis, 426 U.S. 229,

239 (1976).12 The government argues that Scruggs has not plausibly alleged

discriminatory intent, an essential element of an equal-protection claim. See Alston

v. City of Madison, 853 F.3d 901, 907 (7th Cir. 2017). Scruggs responds by saying that

“she, along with other African Americans were treated differently because of their

natural hair” and that Scruggs “is being discriminated against because of her hair”

since “TSA does not perform these searches on persons with straight hair.” [25] at 21.

But people with certain hairstyles are not a protected class.

Perhaps Scruggs meant to make a disparate impact argument—the TSA

targets people with a certain kind of hair, and African American people are the ones

with that kind of hair. But if the TSA only means to target the type of hair and the

disproportionate racial impact is unintentional, the practice does not violate the

Equal Protection Clause. See Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d

649, 653 (7th Cir. 2001) (“[O]nly deliberate discrimination is actionable under the

equal protection clause.” (emphasis in original)). On the other hand, if the TSA

intended to discriminate against African American people and decided to implement

hair pat-downs as a pretext to do so (believing that the type of hair serves as a proxy

12 The complaint also refers to the Fourteenth Amendment, but that does not apply to the

federal government. See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483

U.S. 522, 543 n.21 (1987). A Fifth Amendment equal-protection claim is approached in the

same way as a Fourteenth Amendment equal-protection claim. United States v. Nagel, 559

F.3d 756, 760 (7th Cir. 2009)

for race), that would violate the Equal Protection Clause. See Pers. Adm’ of

Massachusetts v. Feeney, 442 U.S. 256, 272 (1979). But Scruggs’s theory is not

apparent from her complaint, and she does not argue that her claim is one of

intentional discrimination implemented by pretextual hair pat-downs.

IV. Conclusion

Petrowsky’s motion to dismiss [18] is granted. All claims against Petrowsky

are dismissed with prejudice, as are the Bivens claims against the unknown TSA

agents.!3 The government’s motion to dismiss [13] is granted in part, denied in part.

It is denied as to the FTCA claim, but all other claims are dismissed without

prejudice.!4 Scruggs has leave to file an amended complaint by April 18, 2019. A

status hearing is set for April 11, 2019 at 9:30 a.m.

ENTER:

ManishS.Shah sis

United States District Judge

Date: March 27, 2019

18 See Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008) C[D]istrict courts have broad

discretion to deny leave to amend ... where amendment would be futile.”); Hinnen v. Kelly,

992 F.2d 140, 144 (7th Cir. 1993) (affirming dismissal with prejudice based on qualified

immunity).

4 “District courts routinely do not terminate a case at the same time that they grant a

defendant’s motion to dismiss; rather, they generally dismiss the plaintiff's complaint

without prejudice and give the plaintiff at least one opportunity to amend her complaint.”

Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).

16