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)

MEMORANDUM OPINION Plaintiff Peter James Athert on awoke early one morning to the s ound of a U.S. Park Police helicopter flying overhead i n the course of investigatin g a report of gunshots fired in the area. Greatly distressed by the i ncident, Atherton claims to h ave suffered severe emotional trauma and harm to his internal organs. The government has mov ed to dismiss his ensuing pro

se Complaint, one brought under the Fe deral Tort Claims Act (“FTCA ”), 28 U.S.C. § 1346. Finding that the helicopter pilo t’s chosen method of flight was grounded in the Park Police’s policy of assisting local law-en forcement operations, and that it therefore satisfies the FTCA’s “discretionary function” excepti on to the United States’ waiver of sovereign immunity, the Court will grant the government’s motion.
I. Background Peter Atherton “rents a room in [ a four-story] house at the att ic level,” with “[o]nly a wood [and] shingle roof separat[i ng] [him] from the outside.” Compl. ¶ 6. He alleges that, on November 15, 2011, “a park police he licopter [was] hovering at a very low level above [his] residence,” id. ¶ 1, whi ch “awakened [him]” at 2:30 AM, id. ¶ 1 0. According to Atherton, the helicopter’s hovering interrupt ed his sleep, id. ¶ 15, and caus ed “damage[] to his heart [and] possibly other body organs, emotiona l trauma, pain [and] suffer ing,” id. ¶ 4. Atherton also2 claims that the helicopter’s pres ence aggravated other injuries he had sustained in a 2008 automobile accident. Id. In November 2013, Atherton submitte d an administrative tort cla im to the National Park Service’s U.S. Park Police, i d. ¶ 1, in which he recounted his experience more vividly: Claimant Atherton was asleep, reclining face up with his back o n the bed at the attic level of the rented room in a single family dwelli ng. At . . . 2:30 AM, he was abruptly awakened with his heart and probably other body organs oscillating in his chest. His heart seemed to be throbbing vio lently in his chest, pounding itself against his ribcag e. Atherton abruptly sat up in bed and noticed what appeared to be a pulsati ng sound overhead. The oscillatio ns of his heart within his chest seemed . . . to be in tune with the pulsating sound overhead. . . . Atherton then noticed a loud rustling sound of the trees outsid e his window shaking somewhat violently. . . . Atherton then recognized what appeared to him to be the n oise of a helicopter outside his window. T he sound of the helicopter gra dually dissipated as it seemed to leave the area. Atherton remained seated not kno wing exactly what next to do. With every heartbeat, there was intense to dull pain. . . . [B]ecaus e of the pain, he did not sleep. Id. Ex. 1, at 2–3. Because Atherton purportedly “d[id] not have health insurance, he was very reluctant to seek hospitalization,” deciding instead “to rest” and treat his “perceived trauma himself[.]” Compl. ¶ 4. The agency denied his claim for $850, 000 in damages. Id. ¶ 1; see generally id. Ex. 3. In a declaration filed with the Court, Sergeant Keith Bohn, a h elicopter pilot with the U.S. Park Police since 1994, descri bed that evening’s dispatch of the Park Police helicopter as follows: On November 15, 2011, during the events at issue in this case, I was on duty with the Aviation Unit in the District of Columbia. I was responsible for piloting the [Park Police] helicopter, “EAGLE 2[,]” should avia tion support [have] be[en] warranted during my shift. At approximately 0140 hours, [Park Police] units from . . . Dis trict 3 responded to a report of “shots fired” within the vicinity of t he Pierce Mill area of Rock Creek Park . . . .3 [Park Police] units on the ground . . . requested dispatch of E AGLE 2 to provide aerial surveillance of the area to determine whether an y suspects or shot victims could be located. At approximately 0200 hours, I piloted the EAGLE 2 helicopter f rom its landing zone . . . in Anacostia Park, Southeast Washington, D.C . to the Pierce Mill area, and conducted a broad search of the general area usi ng the helicopter’s search lights and equipment. . . . After searching the area for a pproximately one-half hour with n egative results, [Park Police] units on the ground cleared EAGLE 2 and the mission was terminated. Govt.’s Mot. Dismiss or, in the A lternative, for Summ. J. (“Gov t.’s Mot. Dismiss”) Ex. A (“Bohn Decl.”), ¶¶ 2–6. Sergean t Bohn denied having operated E AGLE 2 “at [a] low altitude over [Atherton’s] residence,” i d. ¶ 8, or “at an altitude or ma nner inconsistent w ith appropriate and legal operation of police helic opters in the District of Co lumbia,” id. ¶ 9. Rather, he averred, “[a]t all times during the search mission of November 15, 2011, I operated EAGLE 2 at a safe altitude above occupied space.” Id. ¶ 10. Atherton has sued Sally Jewe ll, Secretary of the Interior; 1 Robert MacLean, Acting Chief of the U.S. Park Police; Serg eant Bohn; and Sergeant Mark Varan elli, whom he alleges to have been aboard EAGLE 2 on November 15. 2 Atherton brings this action under the FTCA, demanding compensation for lost wages, see Compl. ¶ 4, and for “injury, pain [and] suffering . . . to [his] person [and] damage to t rees [and] property,” id. ¶ 15 .c. His Complaint is premised on the allegation that a U.S. Park P olice employee negligently ope rated a helicopter in the vicinity

1 The U.S. Park Police is a subdivi sion of the National Park Se rvice, which is a bureau of the U.S. Department of the Interior.

2 Atherton’s Complaint also name s as defendants the Secretary o f Defense and the Solicitor General of the United States . He requests “some kind of equita ble remedy directed at [D]efense to cease such unprofessional and car eless behavior,” Compl. ¶ 1 9; he appears to sue the Solicitor General under the FTCA. But because Atherton has pled no facts suggesting any likelihood of future harm attributable to the D epartment of Defense from the Park Police’s use of helicopters, or any connection at all between the Solicitor General’s office and the November 15, 2011 incident, the Court will grant the government’s motion to dismi ss as to these defendants.4 of his dwelling. Because Ather ton has not contested the govern ment’s representation that Sergeant Bohn was acting within t he scope of his employment—see Compl. Ex. 1, at 4 (alleging that a Park Police employee “was on duty inside a helicopter . . . flying in the area at the time in question”); Govt.’s Mot. Dismiss 5; Bohn Decl. ¶¶ 1, 5—the Cour t construes Atherton’s nedgligence claim as one against the United States alone. See 28 U.S.C. § 2679(b)(1) (providing that when a federal employee “ac ting within the scope of his of fice or employment” is alleged to have negligently harmed persons or property, “[t]he remedy agai nst the United States provided by [the FTCA] . . . is exclusive”). Thus, the Court proceeds w ith “the Government [as] the sole party defendant; and the FTCA’s requirements, exceptions, and d efenses apply to the suit.” Harbury, 522 F.3d at 416. 3 The government moves to dismiss Atherton’s Complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), ar guing that the FTCA’s waiver of sovereign immunity does not apply on these facts. In the event that the Court finds jurisdiction to be proper, the government moves, in the alternative, for sum mary judgment on the ground that Atherton has demonstrated no compensable injury.
II. Legal Standards Because “[f]ederal courts are courts of limited jurisdiction, . . . [i]t is . . . presumed that a cause lies outside this lim ited jurisdiction.” Kokkonen v. Gua rdian Life Ins. Co. of Am

. , 511

3 The Court notes that neither t he Attorney General nor her des ignee has formally certified that Sergeant Bohn was acting within t he scope of his employment, wh ich the so-called Westfall Act contemplates for situations lik e this—and which the Court under stands to be a common practice. See 28 U.S.C. § 2679(d)(1) (providi ng that upon such a certific ation, the plainti ff’s claim “shall be deemed an action against th e United States . . . and the Uni ted States shall be substituted as the party defendant”). Nevertheless, because the statutory tou chstone is whether a governmental defendant was “acting within the scope of his office or employm ent,” id. § 2679(b)(1)—which Atherton does not dispute—and not w hether the government has fo rmally filed an “official capacity” certification, the Court construes Atherton’s Complai nt as one against the United States under the FTCA.5 U.S. 375, 377 (1994). When the Court’s subject-matte r jurisdiction i s challenged, “th e plaintiff bear[s] the burden of proving by a preponderance of the evidenc e” that the Court has jurisdiction. Biton v. Palestinian Interim S elf-Gov’t Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004). “If the court determines at any time that it lacks subject-matter juris diction, the court must dismiss the action.” Fed. R. C iv. P. 12(h)(3). When assessing the existence of subject-matter jurisdiction, unlike whether a plaintiff has stated a claim, a court may cons ider material outside of the complaint, Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 ( D.C. Cir. 1992), but factual discrepancies are to be resolv ed in favor of the plaintiff, Cra ne v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). Under well-established principl es of sovereign immunity, “the U nited States may not be sued without its consent.” FDIC v. Meyer, 510 U.S. 471, 475 (1 994) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). “[T]he term s of its consent to be s ued in any court define that court’s jurisdict ion to entertain the suit.” Hercules, In c. v. United States, 516 U.S. 417, 423 (1996) (quoting United States v. Testan, 424 U.S. 392, 399 (197 6)). “Absent a waiver, sovereign immunity shields the Federal G overnment and its agencies from s uit.” Meyer, 510 U.S. at 475. The FTCA waives the federal gove rnment’s sovereign immunity “un der circumstances where the United States, if a private person, would be liable t o the claimant in accordance with the law of the place where the act or omission occurred.” 28 U .S.C. § 1346(b)(1). It “does not create a cause of action against the United States,” Hornbeck O ffshore Transp., LLC v. United States, 569 F.3d 506, 508 (D.C. Cir. 2009), but instead “makes the United States liable in accordance with applicable local tort law,” Art Metal–U.S.A., I nc. v. United States, 753 F.2d 1151, 1157 (D.C. Cir. 1985). Under the FTCA, a plaintiff “may sue the United States in federal court for state-law torts committed by government employees wit hin the scope of their6 employment.” Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2 008) (citing 28 U.S.C. §§ 1346(b), 2671–80). Thus, the FTCA re nders the United States subject to suit for certain—but not all—tort claims.
III. Analysis The government contends that it has not waived its sovereign im munity on these facts because the FTCA’s “discretionary function” exception is satisf ied. This exception provides that the United States is not liable for [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such st atute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion invol ved be abused.
28 U.S.C. § 2680(a). To determine whether the disc retionary-function exception bars a negligence claim against the United Sta tes, courts engage i n a two-step inquiry. The first question is whether a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). If so, “the employee has no rightful option but to adhere to the directive,” id., and “[f]a ilure to abide by such [a] directive[] opens the United States to suit under the FTCA.” Shuler v. Uni ted States, 531 F.3d 930, 933 (D.C. Cir. 2008) (quoting Loughlin v. United States, 393 F.3d 1 55, 163 (D.C. Cir. 2004)). The second issue is “whether ‘the ac tion challenged in the case inv olves the permissible exercise of policy judgment.”’ Id. (quo ting Berkovitz, 486 U.S. at 537). Because the exception’s purpose is “to prevent judicial ‘second-gue ssing’ of legislative and admin istrative decisi ons grounded in social, economic and political pol icy through the medium of an action in tort,” Merry v. Nat’l7 Park Serv., 985 F. Supp. 3d 90, 94 (D.D.C. 2013) (quoting Unite d States v. Gaubert, 499 U.S. 315, 323 (1991)), the exception “prot ects only governmental act ions and decisions based on considerations of public po licy,” Gaubert, 499 U.S. at 323. “A ctions taken in furtherance” of policy or regulatory considerati ons are thus “protected, even i f those particular actions were negligent.” Id. To survive a motion to dismiss on the basis of the FTCA’s disc retionary-function exception, a plaintiff “must allege facts which would support a finding that the challenged actions are not the kind of c onduct that can be said to be grou nded in the policy of the regulatory regime.” Id. at 324–25. If the FTCA’ s discretionary-function exemption is satisfied, “the United States is immune from suit and the Court lacks subject matter j urisdiction over the claim.” Olaniyi v. Dist. of Columbia, 763 F. Supp. 2d 70, 89 (D.D.C. 20 11). The government maintains that th e manner in which the police i nvestigate criminal activity or patrol areas within t heir jurisdiction falls square ly within the discretionary-function exception. Sergeant Bohn’s declar ation states th at Park Police helicopter pilots are “trained in safe, legal, and appropriate opera tion of [agency] helicopters over the District of Columbia” in order to fulfill the critical governmental function of “conduct ing law-enforcement operations such as the mission on November 15, 2011.” Bohn Decl. ¶¶ 7, 11 . He further avers that EAGLE 2 “has no legally prescribed minimum altitude or floor above oc cupied space” when enlisted to investigate reports of crime in the District. Id. ¶ 11. In response, Atherton does not con test the existence of a Park Police policy permitting the use of helicopters as adj uncts to traditional ground-based policing. Rather, from the rough timeline he has stitched togeth er from both parties’ pleadings, Atherton finds it “most probable that Bohn was returning to his ba se”—in other words, “not condu cting law enforcement8 activities”—when his helicopter passed over Atherton’s dwelling . Pl.’s Opp’n 9. 4 According to Atherton, this means that Sergean t Bohn’s “low flying negligent interaction with [him] was . . . not grounded in discretionary decisi ons associated with his job .” Pl.’s Opp’n 10. It was instead comparable to a government agent’s use of an automobile in conn ection with his official duties, see Pl.’s Opp’n 9, for which “th e exception woul d not apply” in the ordinary course, because discretionary decisions associat ed with most government employe es’ driving “can hardly be said to be grounded in [the] regulator y policy” that th ey were hired to serve. Gaubert, 499 U.S. at
325 n.7. For present purposes, the Court assumes the truth of Atherton’ s version of events—that Sergeant Bohn was “homeward bound” at 2:30 AM, when EAGLE 2 pas sed over Atherton’s residence, Pl.’s Opp’n 9, which w as in close proximity to the r eported shooting area. Even so, the Court finds that Sergeant Bohn was engaged in the “exercise of policy judgment” when he piloted the helicopter over res idential areas in the course of returning to its l anding zone. Shuler, 531 F.3d at 933 (quoting Berkovitz, 486 U.S. at 537). The U.S. Park Police’s decision to deploy such strident machinery represe nts a careful weighing of the co sts of near-certain disruption and the advantages of exploiting uninhi bited aerial perspectives. The precise routes chosen by Park Police helicopter pilots on their return journeys are part and parcel of the broader regulatory choice to authorize the use of he licopters as a crime-fighting tool with a minimal amount of intrusion. Pilots in the Distric t must balance a number of com peting imperatives in fulfilling that mission, including which neighborho ods to rattle, which sensiti ve structures ought to be avoided at some cost to navigational e fficiency, and whether to pause m omentarily to regain one’s bearings. Because Sergeant Bohn’s chosen method of flight was “grounded in the policy of [a]

4 The Court construes Atherton’s Response: Statement of Materia l Facts for Which There Is No Genuine Issue, ECF No. 11, as his opposition to the government’ s dispositive motion.9 regulatory regime,” Gaubert , 499 U.S. at 325, it satisfies the FTCA’s discretionary-function exception. Even if Bohn hovered briefly over Atherton’s nearby residence, therefore, Atherton has failed to show that the Unite d States’ statutory waiver of sovereign immunity extends to the allegations in his Complaint. 5
IV. Conclusion For the foregoing reasons, the Court will grant the government ’s motion to dismiss. A separate Order accompanies this Memorandum Opinion.

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

5 The Court therefore need not addr ess the Government’s alterna tive motion for summary judgment, one grounded in the conte ntion that Atherton sustaine d no compensable injury from the helicopter flight.