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), claim ing that he suffered person al 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 juris diction in its Memorandum Opinion of March 30, 2016, finding t hat the helicopter pilot’s chosen method of flight satisfied the FTCA’s “discretionary functi on” exception to the United Sta tes’ statutory waiver of sovereign immunity. Atherton has since moved the Court to alte r or amend its judgment under Rule 59(e) of the Federal Rules of Civil Procedure. He has sep arately moved the Court to vacate its prior judgment—which the Cour t construes as a separate moti on to alter or amend—arguing that the Court lacked subject-m atter 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 a lter or amend its prior judgmen t “to correct a clear error in law/fact” and “to pr event manifest injustice.” Pl.’s First Mot. Alter or Amend, ECF No. 19, at 2. As Atherton later explains , however, his motion is predicat ed on “disagree[ment] with the Court’s finding.” Id. at 5. The C ourt held that even if the P ark Police helicopter pilot hovered2 briefly over Atherton’s dwelling, he “was engaged in the ‘exerc ise of policy judgment’ when he piloted the helicopter over res idential areas in the course of returning to its l anding zone.” Mem. Op. of March 30, 2016, at 8 (quoting Shuler v. United States, 5 31 F.3d 930, 933 (D.C. Cir. 2008)). Atherton does not contest the existence of a Park Poli ce 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 m omentarily in the course of ret urning home, First Mot. Alter or Amend 4, whether to regain his bear ings or otherwise. Of cours e, “[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 k ind of discovery” in this case, First Mot. Alter or Amend 5, becau se it has at all times “assum e[d] the truth of Atherton’s version of events,” Mem. O p. of March 30, 2016, at 8. The Cour t 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 f rom doing so. 1 For this reason, the Court will not “appoint[] . . . an attorney to aid in the p reparation 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 Int erior on November 14, 2013. See Pl.’s Compl. Ex. 1, ECF No. 1. The agency denied hi s 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 appr opriate United States Distric t 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 judgmen t in an action under sectio n 1346(b) of this title shall constitute a complete bar t o any action by the claimant, by rea son of the same subject matter, against the employee of the government whose act or omission ga ve 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 a gency. See id. Ex. 2. He filed his Complaint in this Court on December 2, 2014 2 after having received no response to his reconsideration reque st. He now moves the Court to vacate its dis missal of his complaint, argui ng that subject-ma tter jurisdiction was lacking because he commenced this action before exhausting his administrative remedies. Pl.’s Second Mot. Alte r Amend, ECF No. 25, at 2. Atherton specifically contends t hat he “prematurely filed his c ourt complaint on December 2, 2014 when he should have waited until December 3, 2 014.” Id. at 2. He cites 28
U.S.C. § 2675 (“Disposition by Federal Age ncy as Prerequisite”), an ad ministrative-exhaustion provision that precludes the f iling of FTCA claims in federal c ourt “unless the claimant shall have first presented the claim to the appropriate Federal agenc y and his claim shall have been finally denied by the agenc y in writing.” Id. § 2675(a). Unde r that provision, moreover, a claimant may deem “[t]he failure of an agency to make final dis position of a claim within six months after it is filed . . . afinal 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 den ial. And since “compliance with § 2675(a)’s presentment requireme nt is a jurisd ictional precond ition to filing an FTCA suit in federal district court,” Ma der v. United States, 654 F.3d 794, 805 (8th Cir. 2011), subject-matter jurisdiction would not e xist in an FTCA suit filed prematurely. The Court will deny Atherton’s motion for two independent reaso ns. First, the Court has already held that it was powerless to adjudicate Atherton’s Complaint. It granted the

2 Although the electronic docket re flects that Atherton’s Compl aint was filed on December 22, 2014, the Court accepts Atherton’s representation that he depos ited all necessar y 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) moti on to dismiss for lack of subjec t-matter jurisdiction because Atherton had “failed to show that the United States’ statutory waiver of sovereign immunity extends to the allegations of hi s Complaint.” Mem. Op. of Marc h 30, 2016, at 9. Thus, the Court has already done precisel y what Atherton moves it to do—“ dismiss this case” for “lack[] [of] subject matter jurisdic tion.” Second Mot. Alter or Amend 2. Atherton has not explained why the Court was obligated to a ddress one possible jurisdictio nal defect before considering another, or why the Court must t herefore 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 de nial” within the meaning of § 2675. The agency evidently unders tood it as such, indicating that Atherton could “file suit in an appropriate United States Dist rict 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 act ion, he may file suit in an app ropriate U.S. District Court” within six months) (emphasis added). N either party disputes that for the next 181 days, Atherton was fully entitled to sue in this Cour t. Atherton’s last-minute de cision to request reconsideration of the denial did not preclude him fr om commencing an FTCA action in the interim. The regulation authorizing requests fo r 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 unequivoca l written rejection of a claim necessarily functions as a final denial of that claim. See Sta te Farm Mut. Auto. Ins. Co. v. United States, 327 F. Supp. 2d 407, 417 (E.D.N.Y. 2004) (holdin g that an initial “denial [from] the agency in writing is, in f act, final for the purpose of exh austion under § 2675, irre spective of5 the possibility for reconsider ation by the agency”); Bond v. Un ited 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 ha ve jurisdiction over the cla im, even though jurisdiction existed . . . between the first final denial and a plaintiff’s election to request reconsideration”). This Court knows of no contrary holdi ngs and has been given no reaso n 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 M otion to Alter or Amend Judgment be
DENIED . The Court will accept no furth er filings in this case. If P laintiff wishes to appeal the Court’s March 30, 2016 Memorandum Opinion, he must file his not ice of appeal within sixty days of this Order. See Fe d. R. App. P. 4(a)(4)(A)(iv).
SO ORDERED

CHRISTOPHER R. COOPER United States District Judge Date: June 30, 2016