Posts about: "DCA" [Posts: 332 Page: 11 of 17]¶

It may seem that way but not the case. Any of the flight tracker programs show regular helicopter activity inside the Beltway with plenty of medical helo ops plus LEO ops (FFX, PG, DC, MSP, USCG). Even a few news helos. What does seem to have changed is PAT ops inside the Beltway, at least temporarily. Training flights have shifted outside the Beltway to a variety of locations, including Route 9. Two PAT flights today circumnavigated the Beltway.

Not sure what you mean by this comment. CW3 Roth interview explained the training requirement for Route 1/4 ops. Question is whether these training flights can be conducted safely. I think they can as long as ATC doesn\x92t delegate their primary responsibility for Class B separation. It is politically untenable to resume Route 1/4 PAT training flights at present. I suspect 12th AB and DCA ATC are reviewing their previous policy that VFR visual separation is safe along these routes.

From NTSB interim report on DCA aircraft / helicopter collision.

"Near Midair Collision Events at DCA
Review of information gathered from voluntary safety reporting programs along with FAA data regarding encounters between helicopters and commercial aircraft near DCA from 2011 through 2024 indicated that a vast majority of the reported events occurred on approach to landing. Initial analysis found that at least one TCAS resolution advisory (RA) was triggered per month due to proximity to a helicopter. In over half of these instances, the helicopter may have been above the route altitude restriction. Two-thirds of the events occurred at night.

A review of commercial operations (instrument flight rules departures or arrivals) at DCA between October 2021 and December 2024 indicated a total of 944,179 operations. During that time, there were 15,214 occurrences between commercial airplanes and helicopters in which there was a lateral separation distance of less than 1 nm and vertical separation of less than 400 ft. There were 85 recorded events that involved a lateral separation less than 1,500 ft and vertical separation less than 200 ft."



What is seen - reported; and what is dismissed … diminishes the value of reporting.
A system broken: a broken safety management system at the national level.

Normalization of deviance?

It won't be the last time I'll think it compulsory to say this about this accident - I'm not trying to provoke the inevitable lawsuits into higher intensity (despite status as simple SLF/attorney).

Almost invariably lawyers as well as law students and professors, when asked to comment about what is taught in law school, recite the truism that "law school teaches you how to think like a lawyer." Problem is, even quite modest experience in and with the realities and pressures of representing clients - i.e., practicing law - dulls the thinking part and intensifies the hustler mentalities, of which there are many variations. I'm noting this because law school actually trains you how to spot the issues. It sometimes is the case that the standard things lawyers think about a given set of issues are not the most relevant and meaningful things.

With that hopefully not grossly pedantic context out of the way..... in previous comments on this thread I've noted that the federal defendants would be expected to assert sovereign immunity.... more technically, that although the Federal Tort Claims Act waives sovereign immunity in general terms, the statute also contains various exceptions - in other words, the exceptions where they apply keep sovereign immunity in place. The exception relevant here is the "discretionary function" exception, which (pardon the attempt at over-simplifying it) keeps the immunity in place if the allegedly negligent act (or omission) resulted from a federal entity's policy decision or choice.

I previously viewed the discretionary function exception is likely imposing a pretty strong barrier against liability of the (probable) federal defendants. However.

However. However, as I write this somewhere in an aviation law practice a mid-level or even junior associate is pounding their computer keyboard, amassing BASED ON THE ISSUES NOW REVEALED an analysis of how the discretionary function exception has never, never ever ever, been imposed to bar liability for alleged negligence roughly and/or reasonably comparable to the record of "encounters" now documented by NTSB Prelim Report. And that record goes back several years . . . but presumably discovery in United States District Court under the Federal Rules of Civil Procedure could easily reach back to even more past years.

Of course, it will be said that ignoring these many encounters was indeed a policy choice, and so the exception does apply, a forum post like this notwithstanding. But that's just the point. The ISSUE here is that there never was a conscious policy directive which the alleged negligence stemmed from. Or stated another way, if I were in the aviation practice imagined above, I'd be running associates ragged to amass the above-mentioned analysis which establishes, among other things, that GROSS NEGLIGENCE by the FAA can never be, and is not as a matter of law, a predicate for applying the discretionary function exception. (For lawyers out there, somewhat akin to prima facie tort.)

By the way, for all the discovery sports fans out there, just think how much fun it will be to run discovery to amass the facts of what actions - meaning by the aircraft in which the RAs were annunciated - were taken as a result of all the RAs as noted by NTSB's Prelim Report.

Seems like the line you added on the chart is exactly what the Pentagon east/west arr/dep should look like. VFR helo Route 5 ends at Air Force Memorial and then it’s a transition route to Pentagon and Washington Monument. Helo traffic avoiding directly overflying the Pentagon.

One would hope traffic arriving/departing the Pentagon is coordinated tower to tower with DCA if traffic is approaching 15 and departing 33….

But what about the arrowed line of the map to the west of the Pentagon, connecting Route 1 and Route 5? Isn't that the route the helipad, twice as far from the 15 piano keys?

One would definitely hope that traffic is coordinated. From my perspective (17th floor, facing east) the Route 5 traffic is just above the level of the Arlington Ridge treeline as it enters my FOV and is then masked by high-rises as it follows the red line over 395. The terrain and buildings are next to 395 so the 196-foot tower can't see over them. Using GE Pro it looks as if the helos are seconds from the 15 approach before the tower has line of sight to them.

As a non-professional here, I assume I am missing something obvious... would someone please educate me as to why the DCA restrictions include the 1200nm limit? I am not seeing how distance traveled prior to approach would impact local congestion, ATC workload, or anything relevant. Just looking to fill a hole in my understanding.
Thanks in advance

Dr David Woods PhD

"\x85 to everyone in safety: look at the DCA midair collision given info in urgent action letter from NTSB. Widespread systems issues, total breakdown of proactive safety; repeats history from Herald of Free Enterprise to Challenger, Columbia etc. see my chapters on (Columbia testimony to Congress, RE book 2006 & 2005 Organization at the Limit book). Highlights real issues of multiple sometimes conflicting goals over multiple jurisdictions/perspectives, signals discounted in the face of ongoing production pressures, etc. Also note the reactions to failure. All well understood in 3 books capturing the new look work of the 80's -- 1990 (Reason) / 1994 (Woods etal) /1997 (Reason)."
Yet here we are all over again. All over again.

https://www.linkedin.com/posts/davidwoods3_to-everyone-in-safety-look-at-the-dca-midair-activity-7307401640821563392-I5Ez/?utm_source=share&utm_medium=member_ios&rcm=ACoAAAizWBQBjDn2 SfSP5os0fcB7hU2U_S8Iv3k

..

Where did you see the David Woods statement, as quoted? Link, perhaps.

Frankly, a lot of lessons shown in rail accident reports from the 1800s still haven't fully been learnt outside the rail industry. Aviation is unforgiving of mechanical failures but rail is equally unforgiving of procedural failures.

https://en.wikipedia.org/wiki/Clayton_Tunnel_rail_crash

I don't recall seeing this specific Blancolirio segment previously - and thank you AirScotia for putting it up here.

SLF/attorney as I am, I've looked up some information about ASIAS. Not to bury the lede, the legal issues about whether or not the entities within the federal government which are likely to become defendants in the inevitable litigation will be able to defend successfully on the basis of sovereign immunity will draw, and perhaps draw heavily, on information about ASIAS. This just is my view as (for lack of a better label) an observer, and I'm not part of any legal group or practice currently involved with the matters arising from the accident.

1) Juan overstated one point which could become significant in what I think is the impending legal wrangle over sovereign immunity. The Executive Board of the ASIAS isn't comprised of all the stakeholders shown in one of the slides in the video. The Exec. Board "has representation" from all or substantially all of the stakeholder groups. (Source: portal.asias.aero) Didn't find (or invest more time in looking for) the actual roster of members of that board.

2) skybrary.aero has an interesting page about ASIAS. It notes the involvement of Eurocontrol, ICAO, and Flight Safety Foundation and includes further information about the ASIAS purpose and functions.

3) Most of the slides Juan included in the video appear to have been taken from (or at least those slides appear identical to slides in) a 2007 deck on the Voluntary Information Sharing System Working Group. I won't include the individual's name (just being cautious) but the deck is attributed to the Director, FAA Aviation Safety Analytical Services Division AVP-200. (The slides are marked (in fine print - no irony intended) as "ASIAS Proprietary". Yes, and 67 people were killed in a midair collision in the airspace of our Nation's Capital, so, I'll keep my "fair use" arguments ready if necessary.)

The slides in this deck include a chronological look-back at the genesis and iterations of efforts leading up to ASIAS, from 1995-96 through 2007.

The slide displayed in the video which grabbed my attention was the one indicating that ASIAS is governed by formal principles. Why this is so interesting (imho) is that the legal issue of whether sovereign immunity does or does not apply to FAA and (though it is more complicated) to the Army depends on whether the "discretionary function exception" applies. (That is, a federal statute removes sovereign immunity for negligence in general, but it also includes exceptions where sovereign immunity remains in place as a defense . . . or an affirmative defense, but this isn't law school or actual representation). I'm not drilling into the potential arguments and counters at this time. That being said, I'm quite inclined to think that it will be difficult to prevail on an argument defending the way FAA continued to run DCA because that way was based on policy choices or judgments instead of defined rules - in other words, that FAA exercised discretion in a matter of judgment about policy issues. To reduce this to some absurdity, "show me the policy decision memo that was written about a choice between tolerating the risk, now revealed as obvious - and didn't Board Chair Homendy say it was "intolerable" - of midair collisions, instead of applying all the safety principles embedded in the very existence of ASIAS itself." I'm not waiting for such a memo to surface, but if it exists, surely it will be found in discovery.

4) Not least, Juan walks through some specific reports of previous aircraft-helicopter encounters at DCA. At about 8:50, no. 1458911, he relates an incident with chilling parallels to the fateful night of January 29. I mean, if our court and legal system in the United States still has any meaningful relationship to "the interests of justice" . . . this will be (imho) powerful and effective evidence. And it's not from a distant past - just 2015. If my notes are accurate, the incidents just after this one (a Captain who calls DCA the most dangerous airport he's familiar with or words to that effect), and the previous incident also (a TCAS RA, complied with, but then a GPWS from the tower was triggered, incident 1558721 at about 8:15) - when was a specific policy judgment made to shrug off incidents such as these, and what were the alternatives then considered? Or was it "system drift, this is the way we've always done things, National is close to the Hill you know" .... these explanations do not constitute policy, in my view, but rather negligence that can and should be held to adjudicated responsibility and accountability in the United States District Court.

One last point is that Juan's calling attention to the swift and unequivocal actions taken by the Secretary of Transportation is something everyone involved with aviation safety and operations ought to concur with. Not even a month in the role yet - and this tragic calamity occurs. Salute!, Mr. Secretary!

Hi WR 6-3 , I've been following discussion about immunity etc - I'll steer clear of that legal discussion if I may. I have no idea \x96 I\x92ll leave it to you bright legal folks!!! However, with a humble background in Safety Engineering, and having been on a few Flight Safety Committees, and even run a large UK Database used by Equipment Engineers (I just ran the system \x96 a very important point as you\x92ll see later!) to identify Engineering issues with their kit, my thoughts. I\x92ve no idea how things (a) should have worked at DCA and, (b) actually worked there. But what follows is how I\x92ve seen it working countless times when I\x92ve been part of that process at different levels in the UK. Just some thoughts really\x85\x85 and you\x92ll see why I\x92ve underlined the bit above shortly.

Personally, the reference to ASIAS and it forming a key player here is, IMHO, a bit of a "red herring". It's not how Flight Safety should work in my experience of over some 40 years. Flight Safety ethos comes from the top and works down. Flight Safety activity starts at the bottom works up. In other words, it is the guys and gals on the Line, in the Tower, in the Hangar, in the Cockpit day-to-day who should actively spot and flag up issues relevant to where they are working - encouraged and supported all the way by the ethos from on high. After all, they (and only they) know exactly what is happening in their airspace, on their flight deck, in their hangar.

So the \x93DCA Flight Safety Organisation\x94 (we had Flight Safety Committees as Sqdn and Stn level to manage this \x96 similar in Industry \x96 so does DCA have a similar group? Please tell me it does!) should have been alerted to, possibly, initially unquantified issues with near misses along Route 4 by ATC staff. Local DCA Safety Management and ATC staff would then quantify the issue using the data available directly from such sources as the FAA AIDS and the NASA ASRS databases, all freely available via the ASIAS site. A good overview of ASIAS can be found here and an example of a search screen is the AIDS search form. This is all driven \x93bottom up\x94 . I personally used AIDS and ASRS during my MSc when writing a research paper many years ago \x96 sat at my PC in the UK so it\x92s really easy to use if I could master it! Juan probably got his stuff from there too.

Once the \x93DCA Flight Safety Organisation\x94 has looked at the data sources, either you have no issue or it needs wider investigation. In this case, clearly it was an issue, so (a) Route 4 should have had temporary mitigation put in place by DCA and (b) the "corporate" FAA (for want of a way to describe it) should have been requested to carry out a full "independent" Safety Review. Finally, (c), the ASIAS organisation could have been asked to flag this up to other Airfield Safety Organisations in their \x93Communication\x94 role in case they had similar issues to DCA. Again, local Safety Management at those fields would then investigate.

The FAA Safety Review should decide, with justification , what the next steps are - the justification being called the revised Safety Case (\x93revised\x94 as there should already be an initial \x93Safety Case\x94 supporting the operation of Route 4! Mmmm, an initial Safety Case? Was that a pig I\x92ve just seen fly past here???????!!!!!!!!). The outcome could be (as in this case) to close Route 4 down. If it were to be kept open, the revised Safety Case must support that by adding further mitigation and, vitally, the situation should be then be formally reviewed at defined intervals to ensure such mitigation is actually working before it becomes \x93normal business\x94. The FAA could also order a much wider formal review to see if other airfields are similarly affected and, if so, similar Safety Case reviews should be conducted at such locations if required.

So, from my point of view, I think that ASIAS (and as per the ASIAS overview link earlier) is not in itself responsible for initially identifying issues - it is simply (a) a conduit across users once issues have been identified by a user and (b) it manages some tools for users to use. I managed the RN\x92s Fleet Air Arm Engineering Database with a staff of 3. What we would do is, for example, at the request of Equipment Desk Officers , run additional reports requested by them if they thought, say, there was an increase in issues with a particular type of hydraulic pump or whatever it was. It was not my role in that Post to look for problems - my role was to ensure such data was accessible and ensure the database remained accurate and up to date. As I said earlier, the activity to raise problems and initially scope them is bottom-up as only the worker-bees (in my example, the Desk Officer) see the specific issues where they happen to work. The ethos to ensure that the organisation is in place at each airfield (and the wider FAA) to support the Safety activity should be top-down.

Clearly, it requires suitably qualified/experienced people on the coal face with a mind to safety to actively recognise and flag up such issues, encouraged from the very top by the ethos . That is an important point. If the ethos \x93encourages\x94 the watching of a \x93near miss\x94, sucking one\x92s teeth and saying \x93Sheesh! That was bleep-bleep close!!!!\x94 and moving swiftly on, that is NOT a safety management ethos !!! That is a recipe for disaster! If the ethos exists only in name and the worker-bees are not positively encouraged to raise issues which are then transparently acted on, but is an ethos which is totally subservient to commercial or political pressures then you'll get little or no Safety activity which will lead to\x85\x85\x85.... I\x92m sure you can all fill that ending in\x85\x85\x85!

Just my thoughts FWIW\x85\x85.. and sorry it\x92s so long! Cheers H 'n' H

"That's good thinking there, Hot 'n' High." (with apologies to the late Tom Wolfe for my copying the opening line of his 1968 New Journalism book, The Electric Kool-Aid Acid Test)

1) The starting point for any of my thought process about the midair collision is that this accident should never have happened and would not have happened without some parts of "the system" failing to fulfill their assigned responsibilities. Midair collisions in U.S. airspace are an aberation, aren't they? I sense that many aviators and other aviation professionals don't want to say it out loud - their sense of disbelief that this actually occurred.

A few years ago, in response to a question after a guest lecture he had delivered at an ICAO event in Montreal, then-Chair of the NTSB Robert Zumwalt said, "we've already had that accident" . . . the question was about whether an accident caused by certain factors which were, in fact, present in the Colgan Air accident needed to happen, in order for certain rules to be changed. (I don't want to misstate the q&a, although my best recollection was that the question was about fatigue and rest, and commuting time before line service.) In other words, the DCA midair is not an accident the primary causes of which were factors the overall aviation system had not quite learned to do correctly. In comparison, at the time I first began "reading aviation", wind shear accidents were occuring not infrequently (that beginning was December 1974).

I have not represented anyone or anything in air crash litigation and my posting here is not intended as what most lawyers call "client development and prospecting." Despite that, I think the opening statement on behalf of the families of the victims of this accident will be quite a courtroom moment. It's against this backdrop that I've been trying to think through the federal entities' most likely defense. There is some sense, maybe only vague, that how the anticipated lawsuits play out will have some impact or bearing on how the overall aviation system responds to this tragic occurrence.

2) Not for the first time my choice of phrasing was too emphatic and also imprecise. I didn't mean to point to ASIAS as a foundational or ultimate component of decisions about safety of DCA airspace management and usage. Instead, the content of some of the incident reports pointed out by Juan Browne struck me as glaring. They struck me as strong evidence of two things; one - as noted above, this accident was the kind of occurrence caused by some part of the system not fulfilling its responsibilities, and the other, that there were pretty clear statements by "bottom-up" reporters about such responsibilities appearing to be unfulfilled at particular times and in particular situations.

So, from these two foundations, I'm trying to figure out whether the discretionary function exception applies or does not apply. If it applies, the federal court will not have jurisdiction over the claims and the federal defendants will enjoy immunity (irony intended). I apologize in advance for what follows next (it is quoted in full from Congressional Research Service Report (R45732.8, April 17, 2023) "The Federal Tort Claims Act (FTCA): A Legal Overview". I would not clutter up this respected forum with legal material were it not arguably necessary for meaningful discussion of what is likely to happen next in the aftermath of the night of January 29.

CRS:
"[T]to determine whether the discretionary function exception bars a particular plaintiff's suit under the FTCA, courts examine whether the federal employee was engaged in conduct that was (1) discretionary and (2) policy-driven. "If the challenged conduct is both discretionary and policy-driven," then the FTCA does not waive the government's sovereign immunity with respect to that conduct, and the plaintiff's FTCA claim must therefore fail. If, by contrast, an official's action either (1) "does not involve any discretion" or (2) "involves discretion," but "does not involve the kind of discretion\x97consideration of public policy\x97that the exception was designed to protect," then the discretionary function exception does not bar the plaintiff's claim.

Whether the Challenged Conduct Is Discretionary

When first evaluating whether "the conduct that is alleged to have caused the harm" to the plaintiff "can fairly be described as discretionary," a court must assess "whether the conduct at issue involves 'an element of judgment or choice' by the employee." "The conduct of federal employees is generally held to be discretionary unless 'a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.'" If "the employee has no rightful option but to adhere to the directive" established by a federal statute, regulation, or policy, "then there is no discretion in the conduct for the discretionary function exception to protect." Put another way, the discretionary function exception does not insulate the United States from liability when its employees "act in violation of a statute or policy that specifically directs them to act otherwise."

Even where a federal statute, regulation, or policy pertaining to the challenged action exists, the action may nonetheless qualify as discretionary if the law in question "predominately uses permissive rather than mandatory language." In other words, where "a government agent's performance of an obligation requires that agent to make judgment calls, the discretionary function exception" may bar the plaintiff's claim under the FTCA. Notably, "[t]he presence of a few, isolated provisions cast in mandatory language" in a federal statute, regulation, or policy "does not transform an otherwise suggestive set of guidelines into binding" law that will defeat the discretionary function exception. "Even when some provisions of a policy are mandatory, governmental action remains discretionary if all of the challenged decisions involved 'an element of judgment or choice'".
[End CRS, all quotations in the excerpt as in original, and all footnotes omitted]

3) Which leads to this essential inquiry: which one - and the answer cannot be "both are involved" - is closer to what happened: the federal entity individuals involved at all levels acted in violation of a statute or policy that specifically directs them to act otherwise", or, the federal entity individuals' "performance of an obligation require[d] that agent to make judgment calls", and "all of the challenged decisions involved an 'element of judgment or choice.'"

On one hand, the imperative of separation of aircraft in controlled airspace is pretty absolute, as far as I have been given to understand. There isn't any discretion or choice to risk a collision at an "intolerable" level of likelihood in order to keep traffic moving, both airline and the military and other helicopter operations in question. And that was the query I was attempted to point out: the midair collision at DCA on Janaury 29 looks like the proverbial death of a thousand small cuts, such that there never was any "judgment" or "choice" as those (admittedly ambigous) terms are employed in the statute and its interpretation. I should have been clearer about only imagining that one of many hypothetical situations where - arguing for the defense - someone was looking at ASIAS and proceeded with the calculating or reasoning which presumably would qualify as "judgment" or "choice." The larger point is that taking account of all the safety information in all the system elements which have been noted and others which might not have been noted here, mark me down as quite skeptical that there ever occurred a time, at a particular place, where anyone acting on behalf of the federal government exercised judgment or discretion that - contrary to the assessment of the NTSB Chair - the risk at DCA was tolerable.

Two caveats to wrap: I don't envy the advocates for the victims' families, as it will be terribly challenging to argue the facts of this case without appearing to cast aspersions on some or all of the pilots and controllers. Nobody wants that, and I certainly don't.

The other is that I do not think that the discretionary function issue will play out in the context of the actions by the pilots of either aircraft or the controllers. Rather it will be litigated with regard to the way FAA (and its parent Cabinet department, DoT) structured, managed, and operated DCA airspace. And this could include staffing policies and procedures (but again, not individuals' actions or inactions on the night of the accident). There may be some involvemenmt of civil-military coordination also at the agency level.

On a somewhat personal note, just a few years ago I traveled by air to a major European capital where a quite substantial and important aviation industry organization has its headquarters; the purpose was to attend a conference hosted by that organization. When the flight ended, because I had not previously traveled on a 787 aircraft, I asked the cabin crew if I could please get an invitation to visit the flight deck to see it, if doing so would not unduly delay the pilots from deplaning. When I got admitted to the flight deck, the captain invited me to sit in the LHS, and then gave me his hat and offered to take my photograph (yes, really). In the snapshots this SLF/attorney looks pretty ridiculous, and I wonder, "what am I, ten years old?" I hope neither this post nor any others look like they were written by that kid.

Hiya WR 6-3 , firstly, please do accept my apologies if I came over a bit harshly re ASIAS. I always read you input as, while the detailed legal nitty-gritty is generally way beyond me, you always provide a refreshing viewpoint which is good to read! The aim of my Post, based on my interpretation of the above quote, was just to emphasise the existence of ASIAS is just as a tool or, rather, a set of tools but which has no real "proactive function" in itself. Yes, it represents a very small part of the Flight Safety chain - but as a resource in the main. As you say, there were loads of examples of what happened at DCA and my post was an explanation as to who, I believe, should have been looking at it. Maybe they did - and just ignored it? No idea!

In the UK, the airport operator is totally responsible for the safety of operations on or above their field out to 4000 ft on approach and departure - about 12 miles. The CAA who regulates aviation here, along with the Dept of Transport, but in conjunction with other stakeholders such as NATS (our en-route ATC organsiation), airlines and airfield operators etc, designs the airspace and sets the generic rules for it's use. As you said, the main rule is "Don't crash anything into anything else!". However, at the airfield, it is the airport operator who needs to ensure that the generic rules work in their environment. If a particular rule is legal but, if applied in their location, is unsafe, they can't apply that rule! That's what the Safety Case should say.

A relevant example? I used to regularly (for work) transit London S > N and N > S along the red dotted line below - at 2400ft as it kept me just out of the London TMA but as high as possible so, if it had all gone quiet on the engine front, I'd have the best chance to get the plane onto the ground with me alive and no-one else hurt. As part of the transit, I had to cross the final approach into London City (green line). So, say heading N, I'd chat to Thames Radar while over South London and would ask for a London City crossing. They'd chat to City ATC to co-ordinate and take me to the Thames before handing me to City Tower. My route over the Approach has aircraft at 1200 ft descending on the ILS and so I would have crossed anything landing at 1200 ft above that. So, while on first glance, it was fine I never, ever got that clearance with an aircraft landing - and for very good reasons. If the aircraft on the ILS had had to do a go-around, life could have become interesting very quickly. I was always held until the landing aircraft was well clear (ie ATC could see it was almost at the airfield) before they cleared me across. Indeed, legally, they could have given me a "You see the landing? Pass behind that"! But, no - always positive clearances. Got my vote ....... + gave me chance to enjoy the views of Greenwich and the City of London and "delayed" me a couple of minutes. OK, a bit unfair as LCY is "sleepy hollow" compared to DCA but, despite that, they were very friendly ..... but very strict!!!!!



So, when you are discussing (I think!!!) whether ATC elected to give PAT25 a "You visual? Pass behind" or whether it was "ordered" from on-high as it was deemed safe to do, ultimately, it is the ATCOs call on the day. Now, before I get flamed, do I blame the ATCO ? No! Well, why not? After all, he gave PAT permission! And yes, it was a "legal" clearance. But was it a wise clearance? When unpacking that little lot you have to look at a raft of Human Factors which influenced that ATCO on that night. He was on his own so, probably, the only way he could cope with all he had on his plate was to try and shift some responsibility onto PAT25 - one less thing for him to juggle. But even then, he needed to be monitoring which he clearly was - but while very busy with other approaches and departures so he just picked up a concern too late as the audio shows - "Are you sure you see the jet?". Another factor - was the strategy to use Route 4 while 33 was active something ATCers at DCA, over time, started in an effort to cut down radio traffic and speed things up? If so, had it been assessed and then monitored for adverse safety? While anecdotally, it seemed people were aware of "close calls", had any analysis taken place looking at the Databases? In the UK certainly, all the Airport Operator responsibility.

To the final "accountability" part re payments to families, the thing we have here is (and, folks, correct me if I've got this wrong) the FAA set the rules and the operate the Rules. Here, the CAA sets the rules and the Airfield Operator operates the rules. That is important - for eg, huge argument here in the UK about just how independent the UK's Military Flight Safety organisation is ..... as it is part of the Military. IMHO, what we have here are valid generic rules, some of which were simply not suitable in this specific location - just like crossing London City with an aircraft on approach - legal ...... but very unwise. As to who carries the can, well, as you said WR 6-3 , the legal beagles will get to the bottom of that ..... but it will take some time. I'll leave that side to you!!! My main question out of all of this is, why were not these issues flagged up by airport management for further investigation given it was something of an open "secret"? And where else (around the world) is this happening?

And, on that cheerful note...........! H 'n' H

I think you might be under the impression that the Army, and the Department of Defense, would not have the "discretionary function exception" available. Both of those federal entities (and that's just convenient shorthand, not an actual definition of legal status) would interpose this exception to the removal of sovereign immunity.

I generally do see the raw facts of the accident as pointing to the acts, omissions, decisions and so forth by the pilots of the Army helicopter. But their conduct must be seen - and this must be an absolute hard line - within the context of what acts, omissions, decisions and so forth were taken by the all identifiable elements of the parties involved - the FAA, the Dep't of Transportation, the Army, the DoD. This context includes the night of the accident and many time periods before. At this time as just an observer well outside any actual fact investigation I'm not expressing a view about the manufacturer of the NVGs.

If you would like an example of an overly complicated argument which - on the state of the public record at present - competent (if not also highly motivated and driven) trial counsel would be advised to leave on the cutting room floor . . . What about legal accountability for the Congressional actors who kept overloading the DCA airspace until it broke, or rather two aircraft broke apart upon impact midair and further upon hitting and sinking into the Potomac, along with the shattering of 67 lives and the lives of perhaps countless family members and other loved ones? What about the denizens of K Street and their collections of multiple colors of Gucci loafers, the better to match the liveries of their airline industry clients? I mean, it could get complicated, and not that interesting either. (Disclaimer: there isn't any likelihood, legally speaking, of holding Congress to account for its actions with regard to DCA airspace management and usage. . . . . . you know, other than "voting" and a word that rhymes with "shmolitics.")

H & H:
". . . was the strategy to use Route 4 while 33 was active something ATCers at DCA, over time, started in an effort to cut down radio traffic and speed things up? If so, had it been assessed and then monitored for adverse safety? While anecdotally, it seemed people were aware of "close calls", had any analysis taken place looking at the Databases?"

To start, no apology whatsoever needed with regard to this dialogue. I try to respect the decorum required on this forum generally (meaning as SLF/attorney something has to be pretty severe or awful to warrant apologizing to me). And although I might not explain my sense of this with enough clarity - the FAA is conducting a review (according to Secretary Duffy) of airspace management and usage rules at other airports. The explanations in your posts, including very particularly the procedures when crossing approach corridors for London City, should be read and studied by the presumably well-informed professional ATO (Air Traffic Organization) staff assigned to conduct the review. (If it seems way presumptuous for an SLF/attorney to assert what resources ATO should be considering for the review noted by Sec. Duffy, I would suggest that ATO's reputation at the moment for upholding the much-touted "gold standard" set by FAA and United States aviation in general for the rest of the world ... well, like we used to say in trial practice, it takes the other side only about three minutes in court to stain the draperies, but it will take us all afternoon even to try to clean them. Reputation lost, same deal getting it back.)

On ASIAS, actually I entirely agree with your description of where it fits into the so-called "aviation safety ecosystem" (there simply has got to be a better term). The point I'm stuck on is one that (apologies, once more) comes from litigating in U.S. courts (especially federal District Courts around the country) employment law cases. Specifically, at the start, the main task for defense counsel is to construct the "chronology". Who did and said what to whom, when, and for what reason(s). I've asserted in an earlier post that in what I see as the inevitable litigation arising from this accident, there will be teams of significant lawyers constructing, or attempting to construct, such a chronology, although it won't be about an individual employee's hiring, performance reviews, promotion grants or denials and so on. It will be how it happened that the situation which obtained in the DCA airspace, in the cockpits of the Blackhawk helicopter and the CRJ, and ATC, came to exist.

(And I say "significant lawyers" because the attorneys who handle the big and significant aviation crash lawsuits for the families of victims are kind of the polar opposite of the stereotype ambulance chaser; to the contrary, their work is opposed by big-time big-law firm skyhigh hourly rate legally privileged sharks. The lawyers suing on behalf of these crash victims - if they are the same as the legal specialists I have met and discussed stuff with in various settings - are vindicating the need to bring the truth to light. "Aviation is the safest form of transportation": it is incanted over and over to the point of making anyone who utters it now sound quite seriously performative. Yet if it is so safe, how and why did those 67 people die over and in the Potomac? So with a kind of intense ruthlessness, the lawyers who will represent the families and other loved ones of the crash victims will unearth every little sequential act and omission which led to the situation which obtained on the fateful night of Wednesday, 29 January 2025. Exactly as the quoted language above from your post asks, what indeed was the strategy, if there even was one, as opposed to little incremental changes, accelerated of course by increasing airline flight lengths under the perimeter rule.)

On this basis, I would not concur with the idea that whether immunity is available for the defendants (both the Army and FAA/DoT) depends on whether the ATCO's specific conduct on Jan. 29 was "ordered" from on-high. The "on-high" is the development, over time, of the situation that obtained that night at DCA, despite safety imperatives in the NAS and aviation sector in general - and not a specific order or instruction given on that night.

The question behind the discretionary function exception is whether the act or omission by the defendant either (1) was negligent because it failed to follow a specific rule or statutory provision (if so, no immunity), or (2) was negligent in the usual sense of the word but will nevertheless still be protected by immunity because the act or omission was based on a decision about a policy matter or question. The decision on the policy matter or question is "discretionary" on the part of the government and hence the name of the exception protecting it. The courts are reluctant, and sometimes loath, to second-guess policy decisions made by the Executive Branch (I know, irony neither intended or not intended, given certain prominent flight- and aircraft-related matters in federal court at the moment). Under the first variety of negligence, there was no policy matter being decided, just failure to do something there was a legal duty to do (basic definition of negligence). Under the second variety, there would be a valid case to be made that there was negligence - but the immunity provided by the exception for discretionary functions prevents the case going forward.

So back to January 29, the assertion I've been making here is that no, there was not a specific rule or procedure that said to do things much like you describe the procedure - de facto (unwritten, informal) though it was - for transiting across the approach path. But there certainly were higher-order rules by which FAA and its ATC functions were required to observe in consistent performance, and not merely in repeated incantation that "aviation is the safest form of transportation." In fact, I wonder if clever lawyers might take that slogan and deploy it as a bludgeon. "You're at greater risk driving your car to the airport", they always say. Oh, really? Then let's talk about the equivalent scenario on the streets of Chicago with intersecting traffic lanes (obviously not at different altitudes), similarly difficult visibility conditions at night, compounded by NVGs. possibly compounded by a training or check ride in the vehicle, and then make the case that the Chicago PD cop directing traffic, and the motorist without the right-of-way, were acting on the basis of interpreting policies about driving on public roadways. No, there is no policy matter involved - there are strict rules of the road and over-riding principles for safe driving, and the failure to observe these is negligence.

It's simplistic but it might be sufficiently illustrative. Is "see and avoid" a procedure which involves making decisions on matters of policy? or is it a higher-order safety rule which must be observed at all times?

(Not meaning to slight the point about ANSP and regulatory functions needing to be separate - entirely agree, and yet, this will be an extraordinarily heavy lift to get done in the United States. That being said, I might know some lawyer-types who are fired up about efforts to make it happen this time around.)
WillowRun 6-3

Was the controller really on his own?

The local controller had an Assistant ATC and a Supervisor to coordinate, monitor and regulate the traffic.

Class B airspace "ATC Clearances and Separation. An ATC clearance is required to enter and operate within Class B airspace. VFR pilots are provided sequencing and separation from other aircraft while operating within Class B airspace." source FAA Class B
One way to determine how the application of sequencing and separation to VFR pilots in this airspace was being applied would be to listen to the audio and watch radar replays over the weeks and months prior.

By Airport Operator do you mean the airport itself or the ANSP?

I'm understanding or at the least interpreting your post to advocate an overall view of the likely lawsuits as follows: it's simple - the Army pilots were negligent, just as a motorist (and the federal entity which employed him or her) who failed to yield the right of way and t-boned another vehicle was liable for negligence.

1. On a pilots' forum, it is my view to take caution in one's tone before ever blaming pilots for mishaps or fatal accidents.
2. Especially with regard to military aviators.
3. Under all the airspace and traffic conditions which obtained on the night of the accident, you're certain, are you, that a case of negligence against the helicopter pilots can be framed, litigated, and won? If you are, you must know a boatload more about DCA airspace and operations than most folks on this forum do; it's plainly more than this SLF/attorney knows, I'll have to admit.
4. And speaking of trial strategy and tactics, you're envisioning a case where the FAA skates right out of it, because (presumably) the Army chopper-drivers so obviously t-boned the other vehicle . . . my view is that it is wise to recall an anecdote related by the famous trial lawyer, Gerry Spence.
(After what Attorney Spence thought was his brilliant courtroom performance, ripping witnesses apart and demanding justice for his injured client, the jury returned a verdict against him. At first he failed to understand how it could have found against his client, but then one of the jurors approached him and asked, "Mr. Spence, why did you make us hate you so?" You can find the anecdote in Brian Snow's essay for a NACUA Annual Conference in the mid-1990s, "Boomer's Banana Peels: Making Clients Happy - Is it Possible? - A Story for Children of All Ages" . . . which, by the way, teaches more about practicing law than you can imagine.)
5. I've refrained from including any reference, let alone citation, to the one FAA-related case about the discretionary function exception with which I'm familiar .....until now. See United States v. Varig Airlines , 467 U.S. 797 (1984) (parenthetical omitted because this is just an internet forum, correct?)

Hi WR 6-3 , thanks for that - I think I've finally got the idea here! I've been particularly slow on the uptake and, on that basis, you are correct to reject my "on high" example. I've said much so time for me to sit back - there seem to be so many issues with this case and this "immunity" question is just one aspect to it and which I found difficult as a non-US and non-lawyer to understand. Engineering (my first "life") is far easier - if it doesn't work, you hit it - if it still doesn't work, you just hit it harder! Simples!!!!!

My closing thoughts. It seems ATC were simply trying to run a routing system, the layout of which was handed to them, to the best of their ability. As moosepileit said at Post #1176, "These charted routes are Pre 9/11/01. ATC workload and growth of route, ahem, users, too. How do you boil a frog? Just like this. One degree at a time. This is the B-17/P63 crash - dumb orchestration, no one spoke up." . The ATCO involved seems to be a victim of this - a process of "normalisation" over time and pushing rules to, or beyond, their sensible limits - something I said a few Posts back. Similarly, the helo crew were as much victims - again, possibly a process of "normalisation" over time meant they were a bit too happy to say that they had an a/c in sight which they genuinely thought was 5342 but wasn't - "normalised complacency" if such a term exists - I guess it does now!

My own concerns relate more to the "human factors" involved (as per my Safety Engineering experience) and why someone, somewhere, didn't call "Time-out, Folks! We seem to be having a lot of near-misses here! Time to revisit the Safety Case!" - if there was ever one in the first place....... Interestingly, I've already mentioned the Airport Management team in this context - but how come the airlines, where some of their pilots are calling DCA, what was it, "the most dangerous airport in the USA" (it's somewhere back in this Thread!), didn't call a halt? They also have a responsibility to conduct safe operations. OK, they have less exposure to the rate of TCAS warnings at DCA but someone, somewhere would review all TCAS incidents involving their aircraft, where it was and, importantly, why it occurred........

I hope that, once complete, the detail of their findings are written up and presented formally to the Aviation Community. The ultimate irony is that your fellow legal-beagles will be doing work which should have been done by Flight Safety people in the first place ! The only difference is why they are doing it! As someone who has had a formal background in Flight Safety, that is really quite embarrassing!

To close - I was involved in one "incident" (actually, it was a complete "non-incident" as you will see!) when crossing the overhead of Luton at 3000ft S - N one day. A jet on the runway went tech so the next aircraft on approach, after some discussion between ATC, the stranded aircraft on the r/w and the aircraft on approach, had only one option - to go around as the runway was blocked ...... certainly for a while. Standard missed approach for LTN is (simplified) "climb to 3000ft" - exactly where I was. But The reason I'd been given that crossing clearance was the ATCO had clearly pre-planned for the eventuality of me being overhead at 3000ft and a possible go-around to 3000ft. His instruction was quite straight forward, immediate and totally relaxed. "Airline XYZ, go around - stop climb at 2000ft - traffic crossing in my overhead at 3000ft.". Even so, I did pay very close personal attention to the go-around a/c, checking it actually leveled off at 2000ft ...... to see that it all went according to the "Plan"! Oh, in case you wondered, the big difference between my LTN and LCY crossings was that I couldn't get high enough at LCY for ATC to safely slot just this sort of go-around in underneath me! At LCY, the London TMA limited me to 2500 ft max (well, 2400ft with 100ft to allow for height-keeping errors on my part!).

But at LTN, I did have a great view of a 737 climbing towards me, leveling off and then passing safely below! If only the outcome on that fateful night at DCA had been the same for 5342 and PAT25.........

Nothing in the law is certain but I think a legal theory assigning responsibility to the military has a greater chance of success than one assigning responsibility to the FAA. Of course it is standard practice in such cases to sue everyone who could possibly be held liable.

It seems clear the helicopter crew made mistakes that don't qualify as an exercise of discretion. Under the FTCA the crew is immune from lawsuits but the government is liable for the consequences of any such mistakes they made. As it was the governments responsibility not to assign them missions for which their training was inadequate.

I don't see such a case against the FAA. Perhaps if you find some specific regulation that was violated.

I think there is a reasonable chance the government will concede liability. The FTCA doesn't allow punitive damages and FTCA cases are not tried by juries. So if the government concedes liability I see no reason there will be any evidence presented about the cause, the remaining issues will be the amount of damages.

This all applies to the people on the jet. The helicopter crew can't claim against the military because of the Feres doctrine. Perhaps they have a claim against the FAA but I think their chances are distinctly weaker than those of the people on the jet.