UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

PETER JAMES ATHERTON, 

Plaintiff, 

v. 

UNITED STATES OF AMERICA, 

 

Defendant. 

 

Case No. 14-cv-02160 (CRC) 

ORDER 

Plaintiff Peter James Atherton sued the United States under the Federal Tort Claims Act 

(“FTCA”), 28 U.S.C. § 1346(b), claiming that he suffered personal injury when a U.S. Park 

Police helicopter flew over his dwelling as he slept early one morning. The Court granted the 

government’s motion to dismiss for lack of subject-matter jurisdiction in its Memorandum 

Opinion of March 30, 2016, finding that the helicopter pilot’s chosen method of flight satisfied 

the FTCA’s “discretionary function” exception to the United States’ statutory waiver of 

sovereign immunity. Atherton has since moved the Court to alter or amend its judgment under 

Rule 59(e) of the Federal Rules of Civil Procedure. He has separately moved the Court to vacate 

its prior judgment—which the Court construes as a separate motion to alter or amend—arguing 

that the Court lacked subject-matter jurisdiction to entertain his Complaint for yet another 

reason. For the reasons stated below, the Court will deny both motions. 

I. First Motion to Alter or Amend 

Atherton has moved to Court to alter or amend its prior judgment “to correct a clear error 

in law/fact” and “to prevent manifest injustice.” Pl.’s First Mot. Alter or Amend, ECF No. 19, at 

2. As Atherton later explains, however, his motion is predicated on “disagree[ment] with the 

Court’s finding.” Id. at 5. The Court held that even if the Park Police helicopter pilot hovered 
2 

briefly over Atherton’s dwelling, he “was engaged in the ‘exercise of policy judgment’ when he 

piloted the helicopter over residential areas in the course of returning to its landing zone.” Mem. 

Op. of March 30, 2016, at 8 (quoting Shuler v. United States, 531 F.3d 930, 933 (D.C. Cir. 

2008)). Atherton does not contest the existence of a Park Police policy permitting the use of 

helicopters as adjuncts to traditional ground-based policing. But he finds it “difficult to believe” 

that a pilot would have paused momentarily in the course of returning home, First Mot. Alter or 

Amend 4, whether to regain his bearings or otherwise. Of course, “[m]ere disagreement does not 

support a Rule 59(e) motion.” Smith v. Lynch, 115 F. Supp. 3d 5, 12 (D.D.C. 2015) (internal 

quotation marks omitted). Nor will the Court “authorize some kind of discovery” in this case, 

First Mot. Alter or Amend 5, because it has at all times “assume[d] the truth of Atherton’s 

version of events,” Mem. Op. of March 30, 2016, at 8. The Court also declines to allow 

Atherton to amend his Complaint to include a claim under Bivens v. Six Unknown Named 

Agents, 403 U.S. 388 (1971), because he is statutorily barred from doing so.1 For this reason, 

the Court will not “appoint[] . . . an attorney to aid in the preparation of th[is] pleading.” First 

Mot. Alter Amend 6. 

II. Second Motion to Alter or Amend 

Atherton filed his initial claim with the Department of the Interior on November 14, 

2013. See Pl.’s Compl. Ex. 1, ECF No. 1. The agency denied his claim in writing on December 

3, 2013. Accompanying the agency’s statement of reasons was an acknowledgement that he 

could either “file suit in an appropriate United States District Court not later than six months 

after the date of the mailing of this notification” or “submit a written request for reconsideration 

 1

 See 28 U.S.C. § 2676 (“The judgment in an action under section 1346(b) of this title shall 

constitute a complete bar to any action by the claimant, by reason of the same subject matter, 

against the employee of the government whose act or omission gave rise to the claim.”). 
3 

based on new evidence.” Id. Ex. 3, at 2. On June 2, 2014, Atherton filed a written request for 

reconsideration with the agency. See id. Ex. 2. He filed his Complaint in this Court on 

December 2, 20142 after having received no response to his reconsideration request. He now 

moves the Court to vacate its dismissal of his complaint, arguing that subject-matter jurisdiction 

was lacking because he commenced this action before exhausting his administrative remedies. 

Pl.’s Second Mot. Alter Amend, ECF No. 25, at 2. 

Atherton specifically contends that he “prematurely filed his court complaint on 

December 2, 2014 when he should have waited until December 3, 2014.” Id. at 2. He cites 28 

U.S.C. § 2675 (“Disposition by Federal Agency as Prerequisite”), an administrative-exhaustion 

provision that precludes the filing of FTCA claims in federal court “unless the claimant shall 

have first presented the claim to the appropriate Federal agency and his claim shall have been 

finally denied by the agency in writing.” Id. § 2675(a). Under that provision, moreover, a 

claimant may deem “[t]he failure of an agency to make final disposition of a claim within six 

months after it is filed . . . a final denial of the claim for purposes of this section.” Id. Atherton 

implicitly contends that the Department of the Interior had not “finally denied” his claim, 

because he requested that the agency reconsider its initial denial. And since “compliance with 

§ 2675(a)’s presentment requirement is a jurisdictional precondition to filing an FTCA suit in 

federal district court,” Mader v. United States, 654 F.3d 794, 805 (8th Cir. 2011), subject-matter 

jurisdiction would not exist in an FTCA suit filed prematurely.

The Court will deny Atherton’s motion for two independent reasons. First, the Court has 

already held that it was powerless to adjudicate Atherton’s Complaint. It granted the 

 2

 Although the electronic docket reflects that Atherton’s Complaint was filed on December 22, 

2014, the Court accepts Atherton’s representation that he deposited all necessary documents with 

the Court on the evening of December 2, 2014. See Pl.’s Opp’n Def.’s Mot. Summ. J., ECF No. 

11, at 3. 
4 

government’s Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction because 

Atherton had “failed to show that the United States’ statutory waiver of sovereign immunity 

extends to the allegations of his Complaint.” Mem. Op. of March 30, 2016, at 9. Thus, the 

Court has already done precisely what Atherton moves it to do—“dismiss this case” for “lack[] 

[of] subject matter jurisdiction.” Second Mot. Alter or Amend 2. Atherton has not explained 

why the Court was obligated to address one possible jurisdictional defect before considering 

another, or why the Court must therefore amend its judgment to reflect this purportedly 

mandatory sequence. 

And second, the Court interprets the agency’s December 3, 2013 denial of Atherton’s 

claim—“your claim is denied,” Compl. Ex. 3, at 2—as a “final denial” within the meaning of 

§ 2675. The agency evidently understood it as such, indicating that Atherton could “file suit in 

an appropriate United States District Court” within six months. Id.; see also 28 C.F.R. § 14.9 

(providing that an agency’s “final denial . . . shall include a statement that, if the claimant is 

dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court” within 

six months) (emphasis added). Neither party disputes that for the next 181 days, Atherton was 

fully entitled to sue in this Court. Atherton’s last-minute decision to request reconsideration of 

the denial did not preclude him from commencing an FTCA action in the interim. The 

regulation authorizing requests for reconsideration, after all, specifies that claimants may petition 

an agency “for reconsideration of a final denial of a claim.” 28 C.F.R. § 14.9 (emphasis added). 

At least two other courts have held that an agency’s unequivocal written rejection of a claim 

necessarily functions as a final denial of that claim. See State Farm Mut. Auto. Ins. Co. v. 

United States, 327 F. Supp. 2d 407, 417 (E.D.N.Y. 2004) (holding that an initial “denial [from] 

the agency in writing is, in fact, final for the purpose of exhaustion under § 2675, irrespective of 
5 

the possibility for reconsideration by the agency”); Bond v. United States, 934 F. Supp. 351, 355 

(C.D. Cal. 1996) (rejecting, at great length, the argument that “once a claimant seeks 

reconsideration a court does not have jurisdiction over the claim, even though jurisdiction existed 

. . . between the first final denial and a plaintiff’s election to request reconsideration”). This 

Court knows of no contrary holdings and has been given no reason to diverge from the cited 

decisions. 

For the foregoing reasons, it is hereby 

ORDERED that [19] Plaintiff’s First Motion to Alter or Amend Judgment be DENIED. 

It is further 

ORDERED that [25] Plaintiff’s Second Motion to Alter or Amend Judgment be 

DENIED. The Court will accept no further filings in this case. If Plaintiff wishes to appeal the 

Court’s March 30, 2016 Memorandum Opinion, he must file his notice of appeal within sixty 

days of this Order. See Fed. R. App. P. 4(a)(4)(A)(iv). 

SO ORDERED

 

 CHRISTOPHER R. COOPER 

 United States District Judge 

Date: June 30, 2016