Posts about: "Accountability/Liability" [Posts: 44 Page: 2 of 3]¶

Apart from the IMC non-issue, the cause-and-effect chain of events and omissions in this accident is still under investigation. But I'll try to give some answer to your post - although I doubt my mind will latch onto anything new compared to the volume of this thread to date.

There are unknowns at this point about what information the Army PAT25 crew had in front of them about the altitude at which they were operating. There also are unknowns about the Army crew's visual scan (which, as a non-aviator, sounds to me like a complex subset of facts; I do work on maintaining strong visual scan plying limited access highways and even local streets and roads in my car but the instrument panel of my vehicle is, shall we say, somewhat limited in comparison). Add in the relatively fixed attributes of the physical environment, the background lights of the city and surrounding areas, the river, and so forth. Plus, NVGs, plus experience using same by the particular crew.

Then with all those factual matters still subject to fairly significant unknowns (at least as I am able to follow the developments), your question(s) turn to the acts or omissions of ATC. I am fairly strongly inclined to "stay in my lane" - meaning, there is a lot more about how ATC functions are performed that I don't know, compared to what I might actually have picked up from forum threads and other sources. It stands to reason that the visual separation set-up is subject to formal written rules and procedures, but I don't know to what extent these presumed rules and procedures reach down to very specific operational details. Beyond that, the signal-to-noise ratio of what more I might say would not be too especially good.

I'm reminded of the old saw that some one or another fairly well-versed individual has already forgotten more about a given subject than some smart-aleck will ever be able to master about such subject. I don't want to trip over that . . . altitude restriction.

One other perhaps non-trivial item I can add is that the attorney whose office has filed the preliminary claim (as required pursuant to the federal statute) is very accomplished in this field. I've met him at professional (Aviation Law) conferences. I have enough respect for other members of the bar who have amassed vastly larger public records of accomplishment - even those records which prompt lawyer-bashers to decry the profession and all who practice in it - not to try to pass off forum talk as the equivalent, or even merely reflective of, the serious legal thinking going on in that attorney's conference room. And many other law firm conference rooms. The issues in this matter aren't going to be simple, neat, or pleasant. Perhaps the air has been deflated out of the emotional shock-balloon the midair collision visited upon many folks; it is still my view that this was a catastrophe, wrenching in many respects the NAS all the way back to the skies over New York City in 1960 and the midair which ultimately gave rise to the formation of PATCO. And the strike, which led to, with respect to controller staffing . . . . .

Watched most of the hearing today.
Aviation community and espeically professionals (and others in cheap seats like mine) owe TAC a big Kudos! for the live updates.

I'm not going to restate in depth one of the fundamental legal issues looming in the litigation in which this accident will be dissected; just a cursory summary, for context.

The main defendants, from a liability standpoint, are the two federal government entities and not the airline - quite obviously because as someone upthread observed, the Bluestreak 5342 pilots "owned" the last segment of airspace to be traversed to the runway. Pulling the airline in for deep pockets and insurers is not the issue for liability analysis.

But the federal government in all its actors and agents is protected by sovereign immunity. But -- it also has waived, in other words legally discontinued, its sovereign immunity (by the Federal Tort Claims Act) for many types of alleged wrongful acts. BUT -- there is an exception to its opening itself up to lawsuits - if the action or omission being challenged is a matter of "discretionary functions", in other words the making of policy, immunity is still in place. Only if the act or omission is a "ministerial function" is Uncle open to suit (Uncle Sam, that is). Generally, alleged failure to follow established rules and policies.

Well, if I were in this case, I first would have hit the 7-11 for a six-pack of Giant Size energy drinks, because I would be awake for a week gathering cases and writing preliminary briefs about the glaring nature of the FAA's action - actually an omission - in not adding something on the order of "hot spot" or its equivalent to the pertinent charts. I mean, "policy factors" in that slippery bit of bureaucratic box-checking? (I wasn't tuned in for the exchange in which the FAA witness indicated - according to the TAC live update, that LAX had requested a similar notation relative to helicopter traffic, which FAA did add, but FAA did not suggest anything for DCA because DCA had only requested "hot spot" which, of course, is for surface congestion points not airspace. But FAA let the situation continue unabated, unaddressed? No wonder the cool-as-ice Chair is said to have lost it, her cool that is, over this FAA testimony.)

Forecasting how legal issues will run and play out can be foolish indeed. Perhaps watching the NTSB "animation" - including actual video footage of the two aircraft colliding in mid-air - has wrenched my senses so as to yield a sense of blood in the water. Lawyer, sharks, their similiarities, all that trip.
WillowRun 6-3

And Salute! to the Officer of the United States Army who expressed condolences to the families in attendance, before he started to answer a question that had been addressed to him. A class act, sir.

I appreciate the invitation to comment. With first acknowledging there are several technical factors involved here as to which I have limited understanding (and also that I've commented several times on legal issues likely to be presented by the accident regardless), the legal picture probably is best understood if it is described in two contexts. The fact that the most clearly responsible entities - the Army and the FAA - are both parts of the federal government means that sovereign immunity must be taken into account. (Sikorski, mentioned as a potential defendant by one of the attorneys involved in the case already, has no significant legal risk here, in my view. The reason is its protection by a judicial doctrine known as the "military contractor defense." The specifications given to Sikorski for its design and manufacture were reasonably precise and it met them. See Boyle v. United Technologies Corp. (1989), if more depth and detail is desired.)

As for the airline, to fault the pilots when they were on short finals and expected to concentrate on flying - as others have expressed here numerous times - seems very ill-founded. Whether the airline company could be alleged to have responsibility for not having spoken up more effectively to cause the airspace design and procedure to be redone also strikes me as far too oblivious to the actual operation of the NAS, and the FAA and Congressional processes, to have any validity as an approach to liability. The airline and even Sikorski could still be named as defendants but, to reiterate, this would be just for leverage and not because there is any real pathway to liability for either one.

That having been set as background, the first context ignores the existence of sovereign immunity issues and looks just at what happened and who was responsible. As a rubric for this, "normalization of deviance" seems very accurate. This includes the fact that over time, ignoring Conflict Alerts came to be routine. It includes the practice of confirming "traffic in sight" or related proper terminology, for visual separation even though no traffic had been sighted yet - because it had become routine that the traffic would come into view and be properly identified as the traffic ATC had called out. The testimony about "just make it work", as I heard it, similarly was very concerning; iirc an overall very credible FAA witness acknowledged that the "just make it work" attitude also resulted in decreased safety margins. As did the medical helicopter operator who also had Army helicopter service background. Add in the lack of advanced training, and though I have not practiced law as legal counsel for accident victims' families, the liability theories here appear strong.

Then factor in the use of 3-3 to allievate congestion from high departure rates, rather than slowing or reducing departure slots. Part of the pressure to use 3-3 (as I understood the testimony) was that the Potomac Tracon wanted to increase in-trail separation but DCA instead increased use of 3-3. This was consistent with the attitude, "just make it work".

As to ADS-B on the helicopters, my understanding is that given the roles and missions of the helicopter operations, ADS-B is not equippage the military and its civilian control (in the sense of oversight) could have approved consistent with those roles and missions generally, and especially the continuing-of-government function.

Putting all the causal factors together into a "theory of the case" is perhaps better left to advocates for the accident victims' families (just as defense theories better left to defense counsel in this matter). But since you've impliedly asked, I would not - in this first context - parse out three of the four factors you noted, the lack of ADS-B being the one left out. That leaves the helicopter operating approximately 70 feet too high, the airspace design and procedures including the helicopter routes, and the inaction following the several safety alerts in databases and other reporting functions prior to the occurence of the accident. And including the forced enlistment of DCA for handling more traffic than the widely accepted airspace utilization and safe operation rules and procedures would allow - but they "just made it work." In other words, all of these three factors combine into the most likely theory of liability.

There is a second context, however. Federal government defendants are protected, despite the broad removal (waiver) of sovereign immunity by federal statute, from liability if the alleged negligence resulted from the exercise of discretion. If the actions or omissions being challenged resulted from decisions in which the federal entity weighed economic, social, political and other factors against each other in a form of "policy" decision-making, sovereign immunity remains in place. You can see where this is leading, of course. At what point does the over-use of DCA move out of the protection of "discretionary functions and decision-making" and into the realm of ... just plain negiligence which needs to be addressed in a court action. And likewise, at what point does the Army's set of decisions about how the routes are flown, and how visual separation and traffic sightings are handled, move out of the protection given by discretionary decisions and into the realm of significant negligence not deserving of such protection? Same question for FAA - surely the presence of safety concerns in databases and reporting systems - as unorganized as they may be and as lacking in systematic review as they may be - are matters within the FAA's discretionary functions and decision-making . . . until they're not. (And not equipping PAT helicopters or other D.C.-based Very Important air transport operations by helicopter with ADS-B would have no chance of being ruled not resulting from a discretionary function and decision - it's not even arguable imo.)

I almost included with this (already lengthy) post the "syllabus" of the U.S. Supreme Court's decision in the United States v. Varig Airlines case, which I think is the most pertinent aviation case in which the discretionary function rule is fundamentally involved....but this isn't a legal forum. Still, the U.S. S. Ct. opinion (467 U.S. 797 1984) gives me uncertainty about how any court of competent jurisdiction will draw the line between what would in a case against a not-federal defendant definitely appear to be negligence, and the actions and omissions of the federal defendants here. (My personal view is that the federal defendants acted with such severe negligence that the discretionary function protection has been lost - but that is a gut reaction to the "this accident never should have happened" idea and not legal analysis.)

Finally and last for a reason, I am not commenting about the motives of legal counsel who are representing or advising clients involved in this matter. I have not practiced law a single day, or a single billable hour, or otherwise, on behalf of the families or representatives of aviation accident victims, or the defendants in such matters. As a result, in participation as a guest on this forum I think it's much wiser to let the members of the bar who do have clients and who do practice in this area let their conduct in their professional capacities speak for itself.

From a Forbes Breaking News YouTube clip in which the Chicago-based aviation attorney, Robert Clifford, answers some questions about the status and expected progress of the lawsuits.

The headline refers to Mr. Clifford attributing to legal counsel for American telling him that the collision is "not our problem", the "helicopter ran into our aircraft" and words to the effect there was no reason for counsel for one of the eventual plaintiffs would want to talk to the airline. There was context also - some questions related to how many lawsuits would be filed and litigated, and in reply, Mr. Clifford related that in the Ethiopian accident litigation, some families settled with the airline prior to litigation commencing in earnest. Not so with American at this juncture, he noted.

Mr. Clifford went on to say that the plaintiffs will "show their [American's] responsibility" although there was no elaboration as to the causal sequence of the accident (not that any lawyer would lurch far ahead of what the NTSB has publicly disclosed to date). He also stated that publicly available information indicates that American Airlines (or perhaps its holding company - this was not clarified) had "drawn down massive reserves" in "London", not difficult to infer that this was in reference to insurance coverage. Unsurprisingly, Counsel drew the further inference that American Airlines would not have done so unless it had liability concerns (in so many words) - as to which reasonable minds certainly can and should differ.

One perhaps interesting bit from the video clip is that Mr. Clifford anticipates that a Plaintiffs' Steering Committee or Executive Committee will be formed and approved by the Court, so that discovery practice will not need to be conducted multiple times (one deposition of a given witness rather than one by each plaintiff, and so on).

Edit: and the first federal court lawsuit has been filed.

In video, Clifford claims 110-page lawsuit is publicly available. No luck in locating. Clifford makes following points regarding liability:

American Airlines
- Knowingly operated and expanded operations into an airport (DCA) with \x93massive congestion\x94
- Operated in airspace subject to numerous near-miss reports

AA/PSA Pilots
- Failed to respond to traffic alert 19 sec before collision
- Accepted visual approach to runway 33

Website of the Clifford Law Office in connection with the press event today has posted the Complaint. Notably, the Kreindler & Kreindler law firm also is on the Complaint (these two firms are massive heavy hitters - nobody asked for my view I realize - I'm not familiar with a third firm also listed).

Perhaps this SLF/attorney should "do the reading" ...... I am quite curious whether, and if so how, these preeminent aviation accident litigators have dealt with the discretionary function exception to the statutory waiver of federal government sovereign immunity.

Edit: case number is 1:25 -cv-03382 (United States District Court for the District of Columbia)

I skimmed through the complaint. The defendants are American and PSA (which I will refer to as the airlines) and the USA as responsible for the actions of the air traffic controllers (which I will refer to as the FAA) and for the actions of the helicopter crew (which I will refer to as the army). Perhaps somewhat notable is who is not being sued. This includes the manufacturers of both aircraft and their components and the manufacturer of the night vision goggles.

The best (in my view) argument against the airlines is that it was PSA policy that their pilots should not accept a diversion from runway 1 to runway 33 if they had not already briefed this approach (in addition to briefing the approach to runway 1). The pilot in charge hadn't done this but nevertheless accepted the diversion. This looks bad of course but there is little reason to believe that the omission of the briefing made any difference. It is also argued that the response to the TCAS conflict alert was inadequate which seems only clear in hindsight. Finally there were also insinuations to the effect that airlines should not serve busy airports because they are dangerous that I didn't find convincing.

The argument against the FAA is that the ATCs had actually violated various regulations starting with having one controller handle both helicopters and airplanes and continuing with the specific instructions and information provided to the helicopter and airplane. I suspect these purported violations are not as clear cut as claimed. In any case it is unclear they made any difference.

The argument against the army is that the blackhawk crew violated specific regulations and rules that they were required to observe. Most seriously that they were too high, knew they were too high but didn't correct this in a timely way. This clearly did make a difference and in my view if proven would be sufficient to establish liability.

I didn't notice any references to the discretionary function exception. In general the arguments against the government are based on purported specific violations of established rules and regulations by low level personnel and not on debatable broad policy decisions. The case that an army pilot doesn't have discretion to violate altitude limits seems easy to make to me. Any more than an army driver has discretion to ignore stop signs.

A preliminary caveat is necessary - actually, two caveats. The simpler one is that in my legal career I have not handled personal injury (negligence) matters and, although every attorney licensed in the United States presumably knows at least basics of any given legal subject matter - and even though this is only an internet forum and not practicing law - how the facts relating to the briefing of the approach to 3-3 will impact the liability issues probably will get pretty complicated in the actual lawsuit. (More on this to follow).

Second, and without diving into way too much legal stuff, it's important to remember that the substantive content of the law that will be applied to claims such as in the Complaint can be different in one state within the U.S. compared to another state. As I write this I haven't yet read the Complaint in total and although "jurisidiction" and "venue" certainly are covered, "choice of law" might not be. What specifically the tort (negligence) law of the District of Columbia, as a separate legal jurisdiction even though it is not a state within the U.S. might be, I would have to guess. Whether the plaintiffs will have some legal theory for the District of Columbia federal district court to apply the tort law of, say, some other state where the crash victims lived, ..... I don't know.
......
By "mitigating circumstance", I'm inferring that you're asking whether the continous acceptance of deviations from the airline's policy could lessen the force of arguments that the airline has legal responsibility for the accident as (i) one of the causes of the accident, or (ii), under the argument that if the PSA flight had not accepted the approach to 33, then the entire accident sequence would have been broken and would not have occurred. I find (ii) a very difficult proposition to accept, but not because of logic. After all, and even though it is a counter-factual, if the PSA flight had not been where in the space in the sky where the collision occurred....... then none of the other glaring problems about the airspace would be the focus of so much attention.

But so much else was fundamentally wrong with how the airspace in question was structured, how it was operated (for lack of a better term) by FAA, and how it was operated in by the Army, that moving the PSA flight out of the approach corridor to 33 instead of where the collision occurred strikes me as not sensible. First, it is severely simplistic given the other systemic and operational failures. Second, I see it as insulting to the many serious issues about safety in the NAS which are squarely and directly presented by the facts of this accident. But whether the law to be applied, whether it's the substantive law of negligence in the District of Columbia or some other state within the U.S., allows the analysis of legal liability (of the airline) to be determined by such a severe counter-factual which completely ignores the many other serious failures by the other active participants - I cannot say.

But to continue, so the airline has a policy of some sort that the circling approach to 33 should not be accepted if it was not briefed as part of the initial approach briefing for the usual arrival runway. So the pilots are supposed to interpose the company's policy rather than agree to an ATC request - let's say that's the case. But is it really? I'm going to wait for PSA to defend its pilots and the company policies. Does it actually require the pilots not to accept the approach if the initial approach briefing didn't also include 33? - was it really that level of an absolute prohibition? The Complaint contains allegations, not facts. (I have my doubts, but then SLF guys often do.)

As for the specific question about normalization of devicance, .... it is an interesting question! not least because I think it cuts both ways.

In the standard formulation, as rules get broken over and over, the fact that such breaking of such rules creates a cumulative deviation from the legally required standard of care receives less and less attention. In other words, negligence is gradually accepted as okay. So this certainly would not "mitigate" against the legal arguments for finding the airline to have some legal responsibility.

But on the other hand.... do you recall the scene in which the courtroom attorney, famously portrayed by Tom Cruise, confronts the Git-mo Commanding Officer, portrayed also famously by Jack Nicholson, in the Hollywood film, "A Few Good Men."? Attorney Caffee is trying to get Colonel Jessup to reveal that the Colonel had given an illegal order (which had resulted in severe hazing of a servicemember leading, in conjunction with his medical conditon, to that soldier's death). Counsel cannot ask the Colonel directly. So Counsel asks the Colonel if sometimes, when he gives the soldiers under his command an order, they might shrug it off, saying things like "the Old Man doesn't really mean it" or "he is just giving the order for show, we don't have to do anything about it". And the Colonel slams the question down hard, testifying emphatically that his orders are always, unfailingly, taken as direct orders that must be obeyed. (Anyone who recalls the film knows the rest.)

Was the PSA policy really that strident of an order? I have my doubts, and as I said, I'm anticipating - with more than just lawyerly interest, after all, this accident seems to me to be a watershed event in the evolution of the NAS with severe consequences for years to come - PSA's able and motivated legal counsel will have much to say.

I'm pretty frequently amazed, even after a dozen years, at the knowledge many forum community people have about particular aviation accidents stretching back decades. I wonder, are there examples where the legal system tried to blame pilots, but not for making any error as such, and also amid such a wealth of almost incomprehensibly negligent factors in the structure and operation of the airspace, and the operation of military aircraft in that airspace? (If this is too strong for some readers, my reason is this is a pilot's forum, and so when I see that someone is parking a big bus with a banner reading "throw 'em under here" I think it's okay to sound off.)

Big bus for the Concorde accident WillowRun 6-3 :
https://en.wikipedia.org/wiki/Air_Fr..._investigation Continental still retained the civil liability.

I'd also like to say thanks for the time you take to post knowledgeable responses, in a reasonable approximation of English ( ), such that we can better understand the legal side.

On the Inspector General portion of the proposed legislation (and I'm taking the summary published by the Senate Commerce Comm. as accurate of what actually is in the proposed legislative measure): I had been under the impression that the various Inspector General offices throughout the federal interagency work on any assignment they are given, that they need to tackle and proceed with the established IG process, and there isn't a project-by-project requisition for funding. In other words whatever work they are assigned, the annual appropriation for the IG function is in place. But not having worked with any IG office - and knowing that "partner in a law firm" is a quite different world, I don't really know.

There's more to the IG part of the proposed legislation than budgeting, however. My first thought when I read the Sen. Commerce Comm. summary was that the IG and - speaking generally here - various senior-level authorities in the Defense (now "War") Department, the Army, and the White House, realized almost immediately after the accident - certainly once the initial set of facts came to light - that an Army IG investigation would be guaranteed to produce one thing at least: free discovery for the accident victims' families and their attorneys. As time has rolled on, and with the first Complaint now on file in federal district court, this dynamic has become even more persuasive imo.

I'll litter the thread with legal stuff only a little more here. Anyone following the thread has seen posts about the application of part of sovereign immunity to claims against the Army and the FAA/DOT, despite the Federal Tort Claims Act. Specifically, sovereign immunity continues to apply where the alleged negligence resulted from a federal entity exercising "discretion" in making some decision based on weighing competing policy interests and requirements (apologies both for repeating myself from prior posts, and for the legal readers, for oversimplifying). I think this case is going to descend very far down "into the weeds" on this issue; the factual development seems very likely to get highly granular. And the reason for this is that ordinarily, the "discretionary function" refers to a specific decision at a particular time based on development of some sort of administrative record. I've resisted the impulse to post a summary of the Varig Airlines case, in which the discretionary function part of sovereign immunity protected the FAA from liability in an aviation accident matter - the FAA had made a specific decision about how to handle inspections of aircraft (again, apologies for oversimplifying). But in the DCA midair ..... I think there was not one decision to which the discretionary function part of sovereign immunity could attach. This was not a case of discretion being exercised by FAA or by the Army at a specific time for making a decision about a particular thing - no, this was for lack of a recognized term - discretionary inertia. A cousin of normalization of deviance.

What does this have to do with the Army IG and higher-ups (and very very higher-ups) telling the IG to stay in their barracks, I mean offices? In examining the presumably many decisions (or just the intertia of informal practices) the Army made about helicopter flights in DCA airspace, and about altimiters, and about NVGs, and all the rest of the actual flying stuff I don't know, the IG would develop a factual record, and a very official one at that, about how far outside the discretionary function exception this situation really was. How much discretionary inertia was at work, and about how many different parts of the factual record. Which in turn would greatly complicate the Army - and FAA/DOT also in my view - defending in court . . . . if not actually sink the sovereign immunity defense pretty early on.

Caveat: there are probably thousands of published court decisions involving the discretionary function exception; I haven't read them (other than Varig Airlines, and that was in law school for my law review article), and I could have botched the analysis here handsomely.

On politicians and opportunists of other sorts: The Senate Commerce Committee has done heavy lifting in the civil aviation sector not long ago, in the aftermath of the MAX accidents. I'd give the professional staff working for the Committee some credit, not to say that I can take a side about ADS-B, but instead that they (and the Senators, obviously) see the greatly impactful aftermath of the DCA midair collision, and want to try to set the system on a better footing. And that's before NTSB's report lands on desks, whether noticed only for a few news cycles (if those even exist still) or instead lands with a thud. I'm anticipating it will be scatching, but many following the thread watched the hearings (and read the interviews), so . . . .

And don't forget, 12.5 billion bucks have been appropriated for new ATC stuff, with another 18 billion waiting, if not in the wings, then in the cloakrooms. Congress never hesitates to try to get in front of where the money is going, and 12 billion here, 18 billion there, pretty soon you're talking..... we hope not another NextGen sad story. Possibly the Senate Committee is staking out territory from which to try to assure this time, modernization gets done and done right. (I know, there are structural issues too, but one hill to die on at a time.)

QUOTE=Propellerhead;11971298]Suing AA is just corporate greed by the lawyers. Don\x92t see how any of this is the fault of the airline pilots.[/QUOTE]

I entirely agree with the second sentence, and "slapping myself upside of the head" if any of my posts even left the door open to suggesting otherwise. At the same time, the legal process exists to adjudicate claims of injured parties, in this instance, the families of the accident victims. Their lawyers are doing what the system expects them to do, and while lawyers as a group will never, in this society, engender feelings of sweetness and light, I don't think greed is the reason claims against the airline were filed. I'll leave to one side the familiarity (slight though it may be) I happen to have with the lawyers who filed the Complaint - it won't help here to say they've done plenty well, they're consummate professionals, and they are ethically bound to press for significant compensation for their clients. Others will, understandably, scoff and say, "yeah, that's what I meant, lawyers are greedy." (There was, some years ago, a law firm gossip message board known as Greedy Associates, but I digress.)

No, I think the attorneys for the accident victims' families had little choice other than to assert claims against the airline, as wretched as I think those claims are. First, the federal defendants might pull off a Hail Mary of some sort and establish sovereign immunity through the discretionary function exception under the Federal Tort Claims Act. Second, there are no punitive damages awards against the federal defendants, even if they are found liable. Third, including these claims helps to develop a thorough (and might I say, persuasive) factual record to argue to the court and to the jury (leaving aside factors about advisory juries in FTCA matters & etc.). One could just say "deep pockets" but I wanted to highlight what I believe was the lawyers' thought process. Of course they'll vehemently assert the airline actually was negligent, meaning the pilots..... wretched, abhorent.

Maybe I can find an organization which would like to intervene in the case, on behalf of professional piloting - the pilots are victims of the screwed up airspace management too, aren't they? - and then become counsel of record in the case. Don't hold any breaths.

In reverse sequence;
Without an assessment of potential liability and damages, no defense counsel I have ever known would recommend settlement negotiations to start. What you say about some plaintiffs and their counsel potentially wanting to buy certainty of recovery in exchange for waiving possibly larger recovery later on certainly can happen in litigation. However in this case, the attorneys who filed the Complaint are, to state it (or to try to state it) neutrally, about the biggest guns in the business of litigating claims on behalf of air crash victimns' families. Sure, they might take the earlier, lower dollar route, and/or recommend such a choice to clients, but their reputations - and track records - suggest this will be the least likely course, and only much futher down the timeline. On the other hand, I have no role in the case and do not know whether the two firms (one in NYC the other Chicago) actually represent all the passengers on the American Eagle flight. (And do the estates and survivors of the deceased airline pilots have representation? Or the estates and survivors of the decesased soldiers? I don't know - and not getting into why they might have representation in this case or in general. Or whether an organization on behalf of ATCOs, in the U.S., or more globally, might seek to intervene in light of the facts being asserted against one or more controllers.)

Further, the government attorneys as well as the airline attorneys on the defense would be (imo) pretty far outside practice norms to recommend settlement negotiations without joining issue on anything yet. Perhaps one or more defendants will not file their (respective) Answer to the Complaint before broaching settlement, but doubtful this will happen (insurers' counsel lurking off-stage probably would insist upon an Answer being filed). And, the defense applying sovereign immunity through the discretionary function exception to the FTCA waiver is most likely an "affirmative defense" which, under the Federal Rules of Civil Procedure, probably must be included in a defendant's Answer to the Complaint. Even if your continued doubts about its applicability prove correct, it strikes me as quite inconsistent with the current Department of Justice approach to things to skip the pleading stage and jump to settlement. Especially when the opposing attorneys are among the biggest guns in this part of the trial bar, and especially with the political overtones of the litigation looming (as in, funding by Congress of the new ATC system, and legislation which may be lurching ahead of NTSB findings, as in recent posts about 'the ROTOR Act').

As to the discretionary function exception on the merits:
On the current state of the public record, it is pretty straightforward to say that the helicopter crew deviated from the applicable duty of care (i.e., negligence) - as noted, though, I can't imagine the Army component of the Defendant-USA just declining to contest liability at this stage. It must be noted that plenty of acts and/or failures to act by the FAA component of the Defendant-USA also appear to have departed substantially from the applicable duty of care. Maybe it's too cyncial to have this view, but I think FAA is more deeply entrenched in trying to prevent a litigated result that it had mismanaged the DCA airspace - more deeply entrenched than the Army because, as the airline company attorney reportedly said, the helicopter flew into the airliner, pretty simple. I cannot quite verbalize how the FAA would try to shift major responsibility to the Army and off itself, but the discretionary judgments FAA might argue drove its methods and processes for operating the DCA airspace could be the way FAA tries to do so. Of course, ultimately that still leaves Defendant-USA fully liable - just a politically different outcome.

But recall that the defense of sovereign immunity through the discretiionary function exception to the FTCA waiver is an Affirmative Defense. The defendant can rasie it even when the plaintiff has not sought to plead anything which would, by itself, invoke the issue. And in federal court (unless things have drastically changed since I last stepped up to the lectern in a courtroom with the Big Eagle on the wall behind the bench) the standard for pleading is "notice pleading" not "fact pleading". The Complaint just has to give sufficient notice of what the claims are about and what they're based on, and not all the facts necessary to state a particular claim under the specific substantive law. (Certain State courts still follow "fact pleading" though....been a minute.)

I think the point you were making is that nothing the Complaint has alleged factually, and nothing else about the accident that is in the public record at this time, suggests that a defense based on the discretionary function exception would work, or in fact would be worth trying. My view is that the government will take a very close look at trying to assert it. For example, the way the Army operated the proficiency flights in general and in DCA airspace in partiucular, including but not limited to use of NVGs, draws upon (it would be argued) policy judgments about the critical importance of "continuity of government" operations, and even the more routine VIP transport. Will that be enough to overcome the assertedly "clear negiigence" of the helicopter crew in their visual scan for visual separation, and altitude adherence (and possibly other related operational factors)? Maybe not, but I have no clear idea what process the Army went through to devise the rules by which those proficiency flights are conducted, evaluated, and so on. (And which a proper Army Inspector General inquiry and review would delineate, and with clarity.)

And for the FAA, how many times on this forum have posters pointed out that FAA's operating principle has been to move traffic in volume, and not to focus on what FAA eviderntly considers minor details of proper ATC methods and procedures? Sloppy discretion, maybe, but Congress recently expanded the slots at DCA (iirc) and so in a sense the United States did indeed exercise discretion.

I have posted several times that I do not believe the defense should be successful here. But what some non-pilot SLF and attorney writes (hoping not to overstay my guest-on-the-forum status) here might be many levels of altitude below what will actually happen in the litigation and in the courtroom.

"The 78 feet deviation by the Mil Heli is not the cause of this accident . I hope the lawyers during the trial do not focus on that and minimize the rest ."

It wasn't the sole cause but it was one of the holes in the cheese. If the helicopter had been where it was supposed to be (further east and lower) the accident would not have occurred.

The purpose of the trial is to determine legal liability. It is the purpose of the NTSB investigation to recommend ways to improve safety.

"It is tempting to say that a proper discovery plan in the federal district court litigation - which let's recall has only just started - would indeed drill down into those granular facts. The case might actually see that sort of intense and relentless discovery. ..."

There are two possible theories of government liability. One is that the accident was the result of negligence by the low level people, the helicopter crew and possibly some ATC people. The other is that it was a system failure in which higher level people placed a greater priority on keeping traffic moving than on keeping things safe.

The second theory has a serious flaw from a legal point of view. If it is true the government is likely immune from paying damages because of the discretionary function exception. So why would the plaintiff's lawyers waste time and money on trying to establish a theory under which the government is likely immune when there is a perfectly viable alternative theory with no such difficulty.

A number of observations about the litigation and the facts from which it arises (to the extent the facts are in the public record so far) support my disagreement with the assertions (or if it is preferred, analysis or reasoning) in the quoted post.

First is the alignment and nature of the defendants. Only the airline company defendant has exposure to punitive damages (because of the limitations in the FTCA), and unless one is willing to assert that the U.S. taxpaying base is a kind of insurer, only the airline company defendant brings the deep pockets of its insurers into the plaintiffs' calculus. This is the situatjon even though most all if not actually all aviation professionals on this forum deride claims based on acts or omissions of the CRJ pilots - this isn't stopping the plaintiffs, of course. (The plaintiffs' attorneys, it should be noted, include some very highly experienced aviators, one of whom (according to his bio filed with the court) was part of the PAT unit operating in the relevant airspace earlier in his career.) There may be, though it's too early to be certain, some reluctance to assert strong factual and legal attacks against the Army pilots - it might thought that it just doesn't have a good look and recall, the claims against the airline will be tried to a jury, so minimizing "evil lawyer" opportunities could be important. (Gerry Spence once reported that after winning a hotly contested jury trial and a big damage award, one of the jurors caught him in the corridor and asked him why he had made the jurors "hate him so.")** [Correction! see **]

The relevance of this is that the excerpt your post quoted was about the scope of discovery. Given the claims against the airline are situated as the biggest financial targets, I very seriously doubt that plaintiffs' counsel will make their discovery plans based on only one theory of liability. (I have to add that, in early case filings, the bios of the plaintiff's lawyers (or some of them) are included, with regard to the discovery steering committee and executive committe for what will become many other lawyers involved. I hope I did not fail to articulate in earlier posts how voluminous are the experience portfolios of some of these counsel and their firms - saying they're 'heavy hitters' should NOT be read as damning with insufficient recognition of their. . . . well, Pacer is available to anyone who wants to read the bios themselves.)

So, although the discretionary function exception might be advanced by the government's attorneys, the scope of discovery sought by plaintiffs will, in my view, be very broad. And it's too early to say whether the airline company attorneys (and their insurers' counsel who will be deeply involved, I think) will cause discovery also to go the maximum extent. And this is without any implication at all that discovery expense would be run up on purpose to cause defendants to settle earlier and/or for larger sums - I know this happens in federal court civil llitigation sometimes, but that isn't the driver here (imo).

Second, I think the Complaint already provides a basis to understand the plaintiffs are indeed making allegations against - for lack of a better term and without intention of disrespect - functionaries and lower-level or mid-level managers within the FAA. Even if the Complaint does not spell all such facts out at this point, after the testimony at the Board hearing, it seems quite likely that plaintiffs will assert allegations of negligence against one or more ATCOs. the managers at DCA including in the ATO (the testimony of an ATO official at the Board hearing struck me as ripe for plaintiffs to zoom in on - and iirc it was the very same official who was involved in cross-talk leading to rebuke from the Board Chair), and perhaps on up in the ATO organization. The testimony by a fairly senior manager in the Potomac Tracon for example - whether or not this provides grist for the discretionary function exception for the government attorneys, I don't know, but it does appear likely for plaintiffs to want to discover quite a lot about the memo he testified he had written (about spacing of arrivals, iirc) and what, if anything, was done with it.

So I think my view isn't different, insofar as allegations against let's say individual actors within the overall set of "FAA facts" would naturally lead to very wide-scope discovery.

Third, with regard to the FTCA and the exception as potentially invoked on behalf of FAA overall, I've posted more than a few times that I think it should not apply. But perhaps it will in fact be asserted, and then it could prevail (but see the first point above, with regard to anticipating the scope of discovery). I can imagine the successive iterations of the legal analysis as to whether the exception becomes applicable if and only if there is a defined and specific decision, the determination of which was documented whether extensively or at least to some extent. Again (and I apologize for repeating it) as I recall the Varig Airlines case, the process FAA had set up for certain inspections (of aircraft components which failed and caused an accident) was that type of specific determination of a particular course of action or process. Tell me there's a memo from the FAA Administrator to the head of the ATO directly addressing the margins of safety for simultaneuous helicopter flights on the DCA routes when the specific runways are in use (per ATC Watcher's earlier post) and stating that aircraft movements must be given priority - or something similar as this - and then I would more likely agree that the discretion necessary to invoke the exception may well have been applied.

But what we have here is a much more diffuse situation, which took place over many years, isn't it? Normalization of deviance, or normalization of inertia toward "it hasn't caused a problem so far". And similarly, all the safety-related reports - and the apparent lack of meaningful action - or any action? - addressing these, there wasn't a specific determination about a particular choice or course of action with respect to which the federal district court could justify ruling that discretion had been exercised.

A friend who sometimes follows the forum asked me whether all the talk about the discretionary function exception was classic "over-thinking" because the FAA obviously made choices about how to structure and manage the airspace. Well, I answered, we see opinion polls every day about how people would vote if the election were held today, or how they anticipate they'll vote when Election Day occurs. Those are not votes, though, only your ballot cast in the election is a vote. All of FAA's incremental acts and failures to act - just answers to pollsters, not the ballot box. Maybe the analogy works, maybe not.

I have to acknowledge, never having been a law clerk to any judge at any level, that I'm completely speculating, but the law clerks for the federal district court judge to whom this case was assigned certainly will earn their pay, and will they ever have a great tale to tell, sometime down the road.

** I recalled this incorrectly - Spence had lost the case. Considering that some lawyer at some point in this litigation will engender extreme dislike, here's the tale as told by Gerry Spence:
"When I was a young lawyer feeling my power, my strategy in a certain case was to attack
and destroy every witness the other side put against me. I took on the witnesses, old men with
watery eyes who I knew were but company sycophants trying to keep their jobs. I took on the
experts, scholarly actors who I knew were but paid witnesses attempting to earn their fees rather than
reveal the truth. Cut them up, shredded them, pulverized them. The jury was out only fifteen
minutes before it returned a verdict against my client. I was devastated. Hadn't I won every battle?
Hadn't I destroyed the witnesses? Hadn't my power on cross-examination been overwhelming?
As the jury was filing out of the courthouse, one of the women approached me. She looked
up at me with tears in her eyes. It had obviously been hard for her to turn my severely injured client
out of a court of justice with nothing.
'Mr. Spence,' she said quietly, 'why did you make us hate you so?"'
GERRY SPENCE, How TO ARGUE AND WIN EVERY TIME 44-45 (1995) (quoted in [citation omitted]).

This is a "what if" post.

It is based on wondering how, or more pointedly why, someone might have proposed and pressed for the inclusion of the legislative section at issue. And by "how and why" I mean beyond the obvious, and frankly superficial, rationale that the armed forces' aviation elements operating in Washington, D.C. airspace and specifically near and around DCA, should have environments for training flights or check rides closer to what they want.

Suppose - what if - the role of legal issues in armed forces decsion-making or decision processes is a subject that, at this moment, presents more than typical difficulties. And specifically, if the subject of the looming court action in the litigation by the families of the deceased passengers on the RJ causes especially acute difficulties. The prospect of the Army, as well as the FAA and Department of Transportation, getting socked with a huge judgment - and getting socked after a trial during which the testimony and other evidence makes them look rather less than world-class in competence - causes someone to try to do something to avert such an outcome.

"But hey", someone says, "we can rely on the discretionary function exception, and then push all the liability onto the airline. Tough sledding for them and their shareholders, but 'protect the institution' ..." (or words to that effect).

It then is pointed out that the exception to the waiver of sovereign immunity will not be established on the current state of facts. So..... "what if we get legislation passed which applies specifically to management of DCA airspace with respect to military flight operations, and which irrefutably expresses a "policy judgment"? If it had been in place before the accident, Army and USFG would have discretionary function protection. Let's try to get it in place now and use "relation back" arguments and analysis to show that, contrary to what wild-eyed posters on some forum on the interwebs write, the policy judgments protected by the exception were indeed in place and effective as the basis for airspace management on January 29."

A kind of back-dating the check.

His opposition by voting "YES" on it is curious. It seems like the wrong order to proceed. Would it not be better to object to the provision before the vote when there could be some influence in the House rather than hoping the Senate won't agree and just pass it as-is.

"... causes someone to try to do something to avert such an outcome."

The government could simply concede liability. Then the only issue is damages and there would be no reason for testimony about government incompetence.

Aye. Safety should belong to all, not be stolen by the "Guardians" in its name...

I believe the quoted language is from one of my posts on this thread (and no, I'm not complaining about non-attribution).

There are examples where liability was conceded, but these cases were not against the federal government. And the matter of damages was not litigated, but instead determined through a special procedure.

In the cases brought by families of individuals who were killed in the 9/11 attacks, and also in the cases arising from the Deepwater Horizon disaster, plaintiffs had an option to continue their claims in court, or to accept a concession of liability (or at least agreement by defendants to comply with the special process) and have their individual damage awards adjudicated by a "special master". (Special masters are not infrequently appointed by federal district courts to handle detailed matters requiring some type of in-depth knowledge or experience). In both the 9/11 and Deepwater Horizon cases, the special master was a lawyer by the name of Kenneth Feinberg - just to prevent any questions, I have no connection with Mr. Feinberg nor have I ever communicated with him or met him. The process involves individuals describing the extent of their loss and the special master assigning a value, based on knowledge of the range of damage awards on similar facts. It isn't an exact science and does not ever present itself as such (regardless of who serves as special master), but then jury trials and a judge's methods of providing some control over a jury aren't what anyone with a working and reasonable mind would call exact either.

(Caveat: I haven't represented clients in such a special process and I might have mangled one or more parts of what I've described - the main reason to post it is that the way suggested for the government to avoid having its incompetence demonstrated on the witness stand is closely aligned with an existing process for ordinary defendants. Whether Uncle Sam, particularly during the current White House administration, would even think about admitting liability, well, that's a different question.)