Arkin v. United States of America

Background

Assaf Arkin and Jennifer Hong, who are married, sued the United States under the Federal Tort Claims Act. The complaint alleges that Arkin suffered life-threatening injuries after a car being pursued by Federal Protective Service Inspector Charles Clemons struck him while he was walking on a sidewalk in Oakland, California.

According to the complaint, Inspector Clemons was driving a marked Federal Protective Service vehicle when he pursued a car after observing it run a red light. The complaint alleges that the pursuit reached speeds of more than 100 miles per hour in a 30-mile-per-hour zone, continued through densely populated areas, and was conducted without required communication or authorization. The complaint also alleges that an internal Federal Protective Service investigation found that Clemons violated multiple legal or regulatory requirements and exceeded the scope of his authority.

Arkin asserted claims for negligence and negligent supervision and training. Hong asserted a loss-of-consortium claim. The plaintiffs alleged that the United States was liable for Clemons’s conduct within the scope of his employment and for failures to supervise and discipline personnel.

Motion and legal framework

The United States moved to dismiss the complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The government relied on the Federal Tort Claims Act’s discretionary-function exception, which preserves federal sovereign immunity for claims based on a federal employee’s exercise or failure to exercise a discretionary function or duty.

The court explained that the exception generally involves a two-part inquiry: whether the challenged conduct involved judgment or choice, and whether that judgment was the kind of policy-based decision the exception is intended to protect. The United States bears the burden of proving that the exception applies.

The plaintiffs alleged that Clemons violated specific legal and regulatory mandates, including 40 U.S.C. § 1315, two Federal Protective Service directives, an agreement between the Federal Protective Service and the Oakland Police Department, and an Oakland Police Department order. The plaintiffs argued that these authorities limited Federal Protective Service officers’ ability to enforce state or local laws on state property without a federal connection. The government argued that the authorities allowed officers to enforce state or local laws in certain circumstances, including when necessary to protect the public.

Ruling

The court denied the motion to dismiss. It concluded that deciding whether the discretionary-function exception applied would be better handled after development of a fuller factual record. At this stage, resolving the issue would require the court, among other things, to determine whether Inspector Clemons violated legal or regulatory mandates, despite the plaintiffs’ allegations that he did.

The court noted that several cases cited by the government were decided at summary judgment after discovery, and that the cited cases did not involve a Federal Protective Service vehicle pursuit or analyze the specific statute, directives, and other authorities at issue here. The court found it appropriate for the parties to develop the meaning, scope, and application of those authorities through discovery before the immunity question was resolved.

The court denied the defendant’s motion to dismiss without prejudice to the government renewing its discretionary-function argument on summary judgment. It scheduled an initial case-management conference for January 16, 2026, at 2:30 p.m. by video conference, and ordered the parties to file a joint case-management conference statement by January 9, 2026.