Atherton v. United States, 193 F. Supp. 3d 2

Plaintiff Peter James Atherton sued under the Federal Tort Claims Act (FTCA), alleging injury from a U.S. Park Police helicopter flying/hovering over his home while he slept.
The government moved to dismiss for lack of subject-matter jurisdiction under the FTCA discretionary-function exception.
On March 30, 2016, the Court granted the government’s motion, finding the pilot’s choice of flight was protected by the discretionary-function exception.
Atherton filed two post-judgment motions under Rule 59(e): (1) to alter or amend the judgment claiming error and seeking discovery/amendment to add a Bivens claim; (2) to vacate the judgment arguing the Court lacked jurisdiction because he prematurely filed while awaiting agency reconsideration.
The Department of the Interior issued a written denial on December 3, 2013 and informed Atherton he could sue within six months or seek reconsideration; Atherton sought reconsideration on June 2, 2014 and filed his Complaint (deposited Dec. 2, 2014).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 59(e) relief is warranted to correct alleged legal/factual errors and allow discovery/amendment	Atherton contends the Court erred in applying the discretionary-function exception and should permit discovery and a Bivens claim	Government argues the Court correctly applied the discretionary-function exception; discovery and Bivens claim are barred/statutorily precluded	Denied — mere disagreement is insufficient for Rule 59(e); Bivens claim barred by statute and no discovery warranted
Whether the Court lacked jurisdiction because Atherton filed prematurely while seeking agency reconsideration	Atherton says he filed before administrative remedies were exhausted because he had requested reconsideration, so § 2675(a) exhaustion was incomplete	Government argues the agency’s December 3, 2013 denial was a final denial under § 2675 and Atherton could have filed within six months despite later seeking reconsideration	Denied — Court already dismissed for lack of subject-matter jurisdiction on other grounds; December 3 denial was a final denial and did not preclude filing during the six-month window

Shuler v. United States, 531 F.3d 930 (D.C. Cir. 2008) (discretionary-function analysis applies to law enforcement operational decisions)
Smith v. Lynch, 115 F. Supp. 3d 5 (D.D.C. 2015) (mere disagreement does not justify Rule 59(e) relief)
Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (compliance with § 2675(a) is a jurisdictional prerequisite)
State Farm Mut. Auto. Ins. Co. v. United States, 327 F. Supp. 2d 407 (E.D.N.Y. 2004) (an agency’s written denial may constitute a final denial for exhaustion purposes)
Bond v. United States, 934 F. Supp. 351 (C.D. Cal. 1996) (filing for reconsideration after an unequivocal final denial does not divest the court of jurisdiction that existed during the six-month window)
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (creates implied damages remedy against federal officers in limited circumstances)