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Atherton v. United States

United States District Court, District of Columbia

March 30, 2016

PETER JAMES ATHERTON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER United States District Judge.

Plaintiff Peter James Atherton awoke early one morning to the sound of a U.S. Park Police helicopter flying overhead in the course of investigating a report of gunshots fired in the area. Greatly distressed by the incident, Atherton claims to have suffered severe emotional trauma and harm to his internal organs. The government has moved to dismiss his ensuing pro se Complaint, one brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. Finding that the helicopter pilot’s chosen method of flight was grounded in the Park Police’s policy of assisting local law-enforcement operations, and that it therefore satisfies the FTCA’s “discretionary function” exception 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 attic level, ” with “[o]nly a wood [and] shingle roof separat[ing] [him] from the outside.” Compl. ¶ 6. He alleges that, on November 15, 2011, “a park police helicopter [was] hovering at a very low level above [his] residence, ” id. ¶ 1, which “awakened [him]” at 2:30 AM, id. ¶ 10. According to Atherton, the helicopter’s hovering interrupted his sleep, id. ¶ 15, and caused “damage[] to his heart [and] possibly other body organs, emotional trauma, pain [and] suffering, ” id. ¶ 4. Atherton also claims that the helicopter’s presence aggravated other injuries he had sustained in a 2008 automobile accident. Id.

In November 2013, Atherton submitted an administrative tort claim to the National Park Service’s U.S. Park Police, id. ¶ 1, in which he recounted his experience more vividly:

Claimant Atherton was asleep, reclining face up with his back on the bed at the attic level of the rented room in a single family dwelling. 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 violently in his chest, pounding itself against his ribcage. Atherton abruptly sat up in bed and noticed what appeared to be a pulsating sound overhead. The oscillations 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 outside his window shaking somewhat violently.
. . . Atherton then recognized what appeared to him to be the noise of a helicopter outside his window. The sound of the helicopter gradually dissipated as it seemed to leave the area.
Atherton remained seated not knowing exactly what next to do. With every heartbeat, there was intense to dull pain. . . . [B]ecause 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 helicopter pilot with the U.S. Park Police since 1994, described 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 aviation support [have] be[en] warranted during my shift.
At approximately 0140 hours, [Park Police] units from . . . District 3 responded to a report of “shots fired” within the vicinity of the Pierce Mill area of Rock Creek Park . . . .
[Park Police] units on the ground . . . requested dispatch of EAGLE 2 to provide aerial surveillance of the area to determine whether any suspects or shot victims could be located.
At approximately 0200 hours, I piloted the EAGLE 2 helicopter from its landing zone . . . in Anacostia Park, Southeast Washington, D.C. to the Pierce Mill area, and conducted a broad search of the general area using ...

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