UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JONATHAN KORSAH,

Plaintiff,

v. Case No. 1:20-cv-03580 (TNM)

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM ORDER Jonathan Korsah was a passenger in a vehicle that fled a federal officer in the District of

Columbia. The chase ended in Virginia, where the vehicle travelled against traffic on a major

highway and collided with another car. Korsah sues the United States claiming that the officer

was negligent in his pursuit. The United States moves to dismiss for lack of subject-matter

jurisdiction. It invokes an exception to the Federal Tort Claims Act (“FTCA”) that preserves

sovereign immunity for challenges to federal officials’ discretionary functions. For the below

reasons, the Court will deny the motion.

I. In the early morning hours, Officer Clayton Wood-Thomas—a member of the U.S.

Secret Service’s Uniformed Division—tried to stop a car for a purported traffic violation in the

District of Columbia. See Am. Compl. ¶¶ 6–7, ECF No. 10. Korsah was a passenger in that car.

Id. ¶ 4. Officer Wood-Thomas turned on his emergency equipment and then started to pursue the

vehicle. Id. ¶ 7. The pursuit ended in Virginia, where the vehicle with Korsah collided with

another car unaffiliated with law enforcement. Id. ¶¶ 43, 48. The Uniformed Division has established procedures governing “emergency and pursuit

driving.” See Decl. of David Garrett Ex. 3 (“Secret Service Policy”), ECF No. 24-2. Under this

policy, officers “are prohibited from pursuing vehicles for the sole purpose of effecting a traffic

stop.” Id. at 16. 1 They can only begin a vehicular pursuit to “effect the arrest or prevent the

escape . . . of a person who has committed a felony or attempted to commit a felony in the

member’s presence.” Id. Even then, officers must “exercise good judgment in weighing the

benefits of emergency and pursuit driving against the risks involved.” Id. The policy identifies

six factors for officers to consider in deciding whether to start a vehicular pursuit. Id. at 16–17.

Korsah sues the United States under the FTCA,

et seq. He raises one

count of negligence against Officer Wood-Thomas, alleging that the “pursuit constituted a

wanton, willful, and reckless disregard for the safety of [Korsah] and other citizens on the route

of the pursuit.” Am. Compl. ¶ 47.

The Government moves to dismiss for lack of subject-matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1). It argues that Officer Wood-Thomas’s decision to pursue the

vehicle constitutes a discretionary act that exempts the United States from suit under the FTCA.

See Mem. of Law in Supp. Def.’s Renewed Mot. Dismiss (“Def.’s Mem.”) at 6, ECF No. 24-1.

The motion is ripe for disposition.

II. To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must establish that the

Court has jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife,

(1992). Courts must “treat the complaint’s factual allegations as true . . . and must

grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow

1 All page citations refer to the pagination generated by this Court’s CM/ECF system. 2 v. United Air Lines, Inc.,

(D.C. Cir. 2000). In considering the motion,

courts can “consider the complaint supplemented by undisputed facts evidenced in the record, or

the complaint supplemented by undisputed facts . . . plus the court’s resolution of disputed

facts.” Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015) (cleaned up).

III. The FTCA “remove[s] the sovereign immunity of the United States from suits in tort”

and “render[s] the Government liable in tort as a private individual would be under like

circumstances.” See Richards v. United States,

(1962). But not all suits are

permissible. The FTCA includes a “discretionary function” exception. This exception preserves

sovereign immunity for “[a]ny claim . . . 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 involved be abused.”

(a). “[T]he purpose of the exception is to prevent judicial second-guessing of legislative

and administrative decisions grounded in social, economic, and political policy through the

medium of an action in tort.” United States v. Gaubert,

(1991) (cleaned up).

Courts conduct a two-step inquiry to determine whether the discretionary function

exception applies. First, they ask whether “the challenged conduct involves an element of

judgment or choice.” Loumiet v. United States,

(D.C. Cir. 2016) (cleaned up).

If it does, courts then decide whether the “judgment is of the kind that the discretionary function

exception was designed to shield.”

(cleaned up).

The Government raises the discretionary function exception here. It contends that the

Uniformed Division’s pursuit policy vests officers “with significant discretion in choosing when,

how, and to what extent to commence, continue, and terminate the pursuit of fleeing vehicles.”

Def.’s Mem. at 15. And it argues that Officer Wood-Thomas’s decision “necessarily involved

3 balancing competing public policy considerations, such as the enforcement of the law on the one

hand and the safety of citizens on the other.” 2 Id. at 18.

The Government puts the cart before the horse. True, the policy dictates that officers

“exercise good judgment in weighing the benefits of emergency and pursuit driving against the

risks involved.” Secret Service Policy at 16; see also Pl.’s Opp’n at 3 (“Admittedly, the Secret

Service’s Uniformed Division handbook indicates that officers must exercise judgment and

discretion in executing their tasks.”). But such discretion does not apply unless the pursuit

policy pertains. Put another way, officers cannot exercise any discretion until they determine

that the person “has committed a felony or attempted to commit a felony in the member’s

presence.” Secret Service Policy at 16.

The Court raised this threshold felony requirement when it denied the Government’s first

motion to dismiss. See Order at 1–2, ECF No. 22 (“[N]either party addresses the apparent

requirement in the Secret Service Policy that vehicular pursuits can only be initiated for those

who have committed a felony or attempted to commit a felony.”). The Court asked the parties to

“address this requirement in their new briefing, including what felony would be at issue here.”

Id. at 2.

The Government relies on

.05b, “Fleeing from a law enforcement

officer in a motor vehicle.” Def.’s Mem. at 14–15. This law authorizes up to a five-year prison

sentence for a driver who “knowingly . . . attempts to elude a law enforcement officer, following

2 Korsah contends that “it is well settled precedent that an officer’s decision to engage in and conduct a car chase is ‘ministerial’ for the purposes of the FTCA.” Mem. in Supp. Pl.’s Opp’n (“Pl.’s Opp’n”) at 3, ECF No. 25-1 (citing Biscoe v. Arlington Cnty.,

, 1362 (D.C. Cir. 1984)). The Government disputes the applicability of Biscoe here. See Reply in Further Supp. Def.’s Renewed Mot. Dismiss at 6, ECF No. 28 (arguing that Biscoe’s holding “has no bearing on whether the FTCA’s discretionary function exception—a federal statute—is applicable in this case.”). The Court, however, need not resolve this question yet. 4 a law enforcement officer’s signal to bring the motor vehicle to a stop” and does so “in a manner

that would constitute reckless driving.” 3

.05b(b)(1)–(2). The felony

requirement therefore ends up being a rather low bar: almost anyone who does not pull over

likely commits a felony. The Government argues that “there is no question that Officer Wood-

Thomas signaled [the driver] to bring his vehicle to a stop, but the driver attempted to elude

Officer Wood-Thomas and did so while driving recklessly.” 4 Def.’s Mem. at 14–15.

But there is conflicting evidence in the record. Korsah attests that “[a]t all times prior to

Secret Service Agent Wood-Thomas commencing a pursuit of the vehicle,” the vehicle traveled

“at a normal rate of speed and had not committed any moving violations.” Aff. of Jonathan

Korsah ¶ 3, ECF No. 27 (emphasis added). He claims that the driver “committed no moving

violations until after the pursuit by the agent began.”

(emphasis added). And he says that

“[p]rior to the agent initiating a pursuit of the vehicle, neither [the driver] nor [he] committed any

criminal acts.”

. Under Korsah’s account, Officer Wood-Thomas initiated his pursuit

before the “driver attempted to elude Officer Wood-Thomas and did so while driving

recklessly.” Def.’s Mem. at 15.

However unlikely this account may be, the Court must credit it at this stage. If Korsah is

correct, there was no felony to allow Officer Wood-Thomas to pursue the vehicle. So any

discretion under the pursuit policy would be immaterial because officers cannot pursue “vehicles

3 The Government also cites a similar statute under Virginia law—where part of the pursuit and the collision happened. See Def.’s Mem. at 15 (discussing Va. Code § 46.2-817(B)). 4 The Government says that Korsah “has not alleged that the Policy is inapplicable to the vehicular pursuit in this case.” Def.’s Mem. at 14. Even if true, the Court has “an independent obligation to determine whether subject-matter jurisdiction exists.” Arbaugh v. Y&H Corp.,

(2006). 5 for the sole purpose of effecting a traffic stop.” Secret Service Policy at 16. There is thus a

factual dispute about whether the pursuit policy applies.

The Court recognizes that it generally “must address the merits of the jurisdictional claim

by resolving the factual disputes between the parties.” Flores ex rel. J.F. v. District of Columbia,

(D.D.C. 2006). But there are exceptions. The Court need not

immediately decide disputed jurisdictional facts “if they are inextricably intertwined with the

merits of the case.” Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992). The

rule “ensures that, where jurisdictional defenses and the merits of a dispute overlap, the

jurisdictional defense is not used—in the absence of special considerations—to short-circuit the

factual development and adjudicative process to which a plaintiff is generally entitled.” Am.

Oversight v. U.S. Dep’t of Veteran Affs.,

, 153 (D.D.C. 2020).

This exception applies here. Whether Officer Wood-Thomas could pursue the vehicle is

intertwined with the Court’s jurisdiction—the applicability of the pursuit policy and the

discretionary function exception—and the merits of the claim that Officer Wood-Thomas was

negligent in his pursuit. “To hold otherwise would, in effect, transform virtually every FTCA

merits dispute into a threshold jurisdictional contest.” Hale v. United States, No. CV 13-1390

(RDM),

, at *6 (D.D.C. Dec. 2, 2015).

IV.

For these reasons, it is hereby

ORDERED that Defendant’s [24] Motion to Dismiss is DENIED; and it is also

ORDERED that Defendant shall answer Plaintiff’s [10] Amended Complaint by July 9,

2021.

6 SO ORDERED. 2021.06.25 14:27:38 -04'00' Dated: June 25, 2021 TREVOR N. McFADDEN, U.S.D.J.

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