Posts about: "DCA" [Posts: 332 Page: 16 of 17]¶

Does anyone know whether DCA (via the FAA database) has a significantly higher rate of dodgy incidents per movement than other airports? Unless it has, I can't see how blaming the airlines is a starter.

I may have a dig round on the stats when I get time (currently sorting out heating in the house so quite busy with pipework everywhere!). But I'm sure many in the FAA etc have done exactly that and it's why the NTSB came down on the setup at DCA like a ton of bricks. IIR, they suggested that the FAA look to see if there were other similar risks at other airfields as well.

Also, there were some comments a while back in this Thread that there had been a number of "incidents" (ie TAs) at DCA. Also, it's not how many compared to X, Y or Z. It's not just down to simple numbers - risk assesment is way more than that. It's down to the SME's involved.

Just a few incidents should prompt a much more detailed analysis which then reveals the true risk. If there are more happening elsewhere, all that should do is make you look across the board and ask "Where else is this risk present?" despite no evidence to date - in other words they should have indirectly flagged up DCA.

The danger is an accident can happen the very first time a risk comes home to roost - if you are fortunate, you may get some "near-misses" first as a warning ..... but you may not! But, from what I've read, I'm not sure the NTSB saw this as an "out the blue" event - rather an "accident waiting to happen". Finally, safety is not purely numbers - it's appropriate/intelligent interpretation of those numbers. One event can be more significant than a history of 1000 of similar, but slightly different, events

Anyway, I've had my say and much of this has been said before anyway so I'll return to lurk mode! And my plumbing..... Deep joy!!!!!

This was a lot of years ago. I believe what was said was, “out of the turn VFR helo traffic will be at your 10 o’clock 1 mile. They have you in sight, cleared to land RWy33”. Don’t recall if a altitude was mentioned. Their altitude was on TCAS as 200’.

I seriously doubt that this case would be split into two trials. You are (of course) correct that the FTCA does not provide for jury trials, but there are many examples of advisory juries being used by federal district court judges (as you also suggest) in FTCA matters. My inclination is to think that district court judges have little apparent reluctance to empanel advisory juries in FTCA matters because negligence claims would - other things being equal - be precisely among the archetypes of claims for which juries serve as the finders of fact.

The practice of using an advisory jury in FTCA matters is, nonetheless, not without its critics. (See, e.g., "Advisory Juries and Their Use and Misuse in FTCA Cases", 2003 BYU L. Rev. 185) (2003)). Perhaps interestingly, the cited law journal article opens with reference to the use of an advisory jury in a trial arising from the incident in Waco, Texas involving federal law enforcement.

But in the current matter, let it be recalled that there are non-federal defendants. So there will be a jury serving as fact-finder already, and it would seem an even less difficult or concerning step for the U.S. District Court judge to assign the jury for the "ordinary civil case" the additional advisory role for the FTCA claims. WIthout claiming any knowledge at the level of aviator or related aviation or engineering role, the overall factual development needed to present the claims against the federal defendants on one hand, and the civil defendants on the other, are so closely related that the advisory role also makes sense from that perspective.

But are there federal defendants, plural? The Complaint names as defendant the United States of America (and includes the nice touch of giving the country a defined term identifier, i.e., "USA" - Complaint, para. 8). So on two levels, I would not anticipate* divergent let alone clashing attorneys representing, on one side FAA, the other the Army. A litigant in federal district court, to the best of my knowledge, has one lead counsel, and I'm unfamiliar with any practice of splitting the defendant. It might have a nice ring to it; I can almost phrase a law journal article built upon it..... "Splitting the Defendant: the Perils of Beat-Generation Hipster Slang in Federal Practice"...... but I digress.

Secondly, I have serious doubts that the "federal powers that be" will fail to coalesce around the essential facts and defense arguments. (There is a sub-sub-agency within the Department of [formerly Defense] War known as the Policy Board for Federal Aviation. I have no experience working with the Board but I have worked information about it - or tried to do so - into academic work. My understanding, provisional (or provincial) as it may be, is that a conflict between U.S. Army PAT helicopter training requirements, and associated practices and habits of the units involved on one hand, and proper structure and operation of the DCA airspace on the other, would be precisely the kind of matter to be brought before the worthies of the PBFA - but I don't "know that for a fact".) In any event, the FAA and the Army, with the NTSB about to levy some pretty heavy criticisms against them, are very unlikely I think to confront each other. In court, anyway.

* How exactly the USA will deal with representation of the FAA on one hand, and its statutory parent Department of Transportation, and also of the U.S. Army, is of course a matter to be considered, evaluated, and decided upon by the Justice Department. There have been sufficient divergences from what conventional wisdom would say DoJ would do (or not do) in particular situations in recent weeks such that I think it wisest not to venture any comment about the overtly political nature of the decisions which will have to be made. Besides, in my career I have not had the occasion to represent the United States in any legal matter, so.

From Senate Commerce Committee website, following is a summary of the ROTOR Act - Rotorcraft Operations Transparency and Oversight Reform Act. Commerce Committee vote may take place next week.
___________
Rotor Operations Transparency and Oversight Reform (ROTOR) Act
Upgrading In-Flight Safety Technology and Fixing Helicopter Operations to Eliminate Risk
[Sponsors] Senators Ted Cruz (R-TX), Jerry Moran (R-KS), Marsha Blackburn (R-TN), Ted Budd (R-NC), Shelley Moore Capito (R-WV), Roger Marshall (R-KS), Eric Schmitt (R-MO), Tim Sheehy (R-MT), Todd Young (R-IN)

The Problem : The midair collision between American Airlines Flight 5342 and an Army Black Hawk helicopter on January 29th was preventable. For decades, the airspace around the Ronald Reagan Washington National Airport (DCA) operated without an accident, but with thousands of close calls that should have resulted in preventive action. The Black Hawk was likely operating in congested airspace without transmitting Automatic Dependent Surveillance Broadcast (ADS-B) Out\x97a satellite beacon technology that can transmit location, altitude, and velocity to air traffic control and other nearby aircraft faster than radar or other transponders. The airspace is only as safe as its least equipped aircraft, which is why military aircraft must not play by different rules.

The Solution: The ROTOR Act
The ROTOR Act improves aviation safety, addresses FAA knowledge and oversight of ADS-B, and directs the Army Inspector General (OIG) to reevaluate its aviation safety practices. The bill requires:
1. All aircraft operators to equip with ADS-B In technology and transmit such information. ADS-B In is a technology for aircraft to receive location signals from other nearby aircraft and ground technology, improving safety in the sky and on runways.
2. Closes Federal Aviation Administration (FAA) loophole that permitted the Army Black Hawk to fly without broadcasting ADS-B Out. The ROTOR Act allows the FAA to only grant exceptions for \x93sensitive government missions,\x94 not training flights.
3. Requires the FAA to review helicopter routes near airports. The FAA would comprehensively evaluate the airspace at congested airports\x97where helicopters and airplanes are flying near each other\x97nationwide.
4. Directs the Army OIG to initiate a safety coordination audit. The Army Inspector General has declined to voluntarily review the Army\x92s aviation safety practices. The Inspector General would conduct an independent review of the Army's approach to safety.
5. Initiates FAA study on dynamic restricted area for helicopters near airports. The FAA would review whether audio and visual signals could be deployed to reduce airspace confusion and avoid traffic conflicts.
6. Repeals a Fiscal Year 2019 NDAA provision that exempted the Department of Defense from enacted ADS-B transmission requirements.

Why This Matters: The tragic midair collision earlier this year exposed serious and systemic weaknesses in how civilian and military aircraft share and operate in congested airspace. While the National Transportation Safety Board (NTSB) investigation continues, initial findings show glaring failures in oversight and coordination that must be addressed now, not later. The ROTOR Act was drafted in direct response to the operational shortcomings that led to the midair collision. Deconflicting congested airspace and establishing better communication standards between civilian and military aircraftis not optional\x97it is essential. The ROTOR Act does exactly that, ensuring American skies remain the safest in the world.

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.

I entirely agree that getting the facts, at the granular level (that is, with as much completeness and detail as the facts themselves warrant), about how the airspace got configured and how its operation was established as those facts existed on the night of January 29 should be a strong focus - I would say exteme focus - of a real effort to understand how this accident could have happened. Including the names, and roles and responsibilities, of all significant decision-makers and others with non-trivial input into any decisions. As prior posts have made clear, the way in which the helicopter routes were used during particular approach and departure usage of DCA runways did not just spring into existence deus ex machina.

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. In the current era of electronic discovery and perhaps utilizing AI tools to continue to refine content of interrogatories and requests to produce documents (and, down the road a bit, requests to admit specifically articulated facts), more massively intrusive discovery efforts would seem possible. And I say "intrusive" because good and effective discovery really is like taking a sewing needle to one's finger to extract a wood splinter which has embedded itself deeply even if also visibly. You've got to keep digging at it.

If such discovery actually eventuates in the litigation, it could produce results approaching revelation of "the truth" about what happened. Still, seeking compensation for the families of the accident victims, and I'm not unaware for the attorneys for their work (if not also for validation and fulfillment in the type of legal careers they've chosen) will be the main lodestar for all that happenes, imo. (Whether this case ultimately turns out to be an example of the need for "civil justice reform" in the United States .... I can't predict. That would be like saying Congress should enact special legislation to compensate the families of the crash victims, after a proper investigation beyond what the NTSB will provide .... yeah, when Hades sets new wind-chill records.)

Same comments about the myriad previous incidents and follow-up or absence of follow-up. It could be the focus of highly intrusive discovery, which to be effective would need to be conducted in waves, taking information extracted first and then using it to dig out more. I should add, probably need to add, that whether the case management plan which ultimately will be approved by the federal district court judge will or will not contemplate such wide-ranging, time-consuming, expensive, and - to the defendants, "objectionable as unduly burdensome" - discovery is yet to be seen. Of course, the attorneys and law firms already in action (per the Complaint filed recently) aren't rookies, far from it.

One other comment which current Congressional action seems to make relevant. Already 12.5 billion bucks have been appropriated with another 18 billion supposedly somewhere in the Congressional authorizations-appropriations process. No one in the aviation community needs reminding of the litany of emerging and/or intensifying issues confronting the NAS. I happen to hold the view that the European and global ATM communities have advanced very significantly on defining these issues and working - albeit incrementally, and even though not without political issues - on solutions. New entrants, not least UAM. The introduction of AI into ATC functions. Cybersecurity (remote towers being a valid example of the locus of the issue). Of course the drive toward reduced emissions, whether called net-zero or anything else. Include calls for equity and inclusion. HAO; Class E airspace. Service Delivery Model of the ATM Master Plan (Service-Oriented Architecture). My point, which is only partially a rhetorical question, is: how could it be even remotely possible for the United States to design and implement a new ATC system worth 30 billion dollars - and which accounts for the issues I've noted to the extent they apply here as well as in Europe and globally - if the actual hard and distressing facts about the causes of the January 29 2025 DCA midair collision are not uneartherd and properly taken into account?

Indeed but Visual Flight rules (VFR) and visual separations are two very different things . Visual separation can be ( and are) locally restricted , and even Airlines restricted ( think Lufthansa and the SFO incident) . My point is , with hindsight of course, that here, in this route in DCA it should have been restricted , even more so at night..

That is why you have a controller and procedures in place If the procedure says no simultaneous use, no traffic needs to be passed and no request for visual made , unless you allow the normalization of deviance
When you say FAA you mean the regulator right ? because here we have the service provider ( making the local procedures) and the Regulator certifying them being the same entity The "regulator " part should make a safety assessment of the procedures and approve them . In this case they were not safe , and, as I said earlier , especially after the numerous incidents a local restriction should have been in place : no visual separation allowed on those portions of the airspace , or no simultaneous use of that portion of the route when 15/33 is in use.

I strongly suspect this is what will come up anyway in the NTSB report .

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]).

Note that this apparently has passed the House. I presume it's back to the Senate to accept or to modify/reject.

From https://armedservices.house.gov/uplo...to_s._1071.pdf
RULES COMMITTEE PRINT 119–16 TEXT OF HOUSE AMENDMENT TO S. 1071

While it starts out with a request that military training flights may need to have warnings to civilian aircraft, it does not require ALL military operations near DCA to do so and then says:
From Section 373
p275
9 ‘‘(b) WAIVER AUTHORITY.—The Secretary of a mili-
10 tary department, with the concurrence of the Secretary of
11 Transportation, may waive the limitation under subsection
12 (a) with respect to the operation of an aircraft if that Sec-
13 retary—
14 ‘‘(1) determines that—
15 ‘‘(A) such waiver is in the national security
16 interests of the United States; and
17 ‘‘(B) a commercial aviation compatibility
18 risk assessment has been conducted with re-
19 spect to the operation of the aircraft pursuant
20 to the waiver to mitigate the risk associated
21 with such operation; and
22 ‘‘(2) in the case of a waiver to be in effect for
23 a period exceeding 30 days, submits to appropriate
24 congressional committees notice of such waiver, in-
25 cluding a copy of the applicable commercial aviation
p276
1 compatibility risk assessment specified in paragraph
2 (1)(B)

It goes on to specify that this waiver is for DCA.

One only puts in waiver authority if there is certainty it will be used.

This also only appears to affect DCA, leaving civilian aircraft everywhere else in the USA to be blind to the military.

I'm coming to like Jennifer Homendy. It certainly looked like one of the contributory factors to the DCA crash was the military considering themselves to be outside the normal best practises. They now seem to be seeking to make that explicit.

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.

NTSB:
It is true that if the -only- change was using ADS-B Out on the helicopter, this accident would still have happened.

The CRJ was equipped with TCAS, which may or may not have been applicable at this low altitude as it is suppressed at 400 ft. The preliminary report does not indicate the helicopter having a TCAS or having an operating one. It did have the ability to produce ADS-B Out. Neither aircraft is reported to have had ADS-B In.

Since many operators seem to loath spending money on ADS-B In, the recommendation from the NTSB was to (1) stop simultaneous flight path use and (2) go elsewhere when the approaches were in use. The FAA agreed.

Per https://data.ntsb.gov/carol-main-pub...tails/A-25-001 the FAA did what was recommended about simultaneous use.
Per https://data.ntsb.gov/carol-main-pub...tails/A-25-002 the FAA made a satisfactory response concerning planning the alternate route(s)

This legislation is the exact opposite of that recommendation.

No doubt the anger isn't just that the NTSB has yet again been ignored, it's that the FAA agreements to safety measures are targeted for destruction in a way that recreates the circumstance of the tragic event.

I said at first, on seeing this collision a few hours after the event, that I felt rage that so many safety measures are available and yet none of them was actually used.

This section, 373, is what I consider an intentional sabotage of the safe operations around DCA.

The FAA literally had advertising videos showing the use of ADS-B In on helicopters for this exact purpose, to give situational awareness to the pilots long before there would be a need to deconflict with other traffic (see end) . No sudden swerves as TCAS attempts to make a last moment save of a terrible situation. TCAS alone cannot be the solution as TCAS gets shut off to avoid nuisance complaints about the terrain the plane is intentionally going to run into or other proximate planes waiting for takeoff.

ADS-B In is for noting where everyone else is in the neighborhood of the aircraft. Had the helicopter been equipped with ADS-B In they would have known the speed and direction of the CRJ and seen it was on a collision course.

As usual it appears there is no name attached nor meeting notes about who submitted what became Section 373. There is certainly no justification paper that will see the light of day.

If those exist, please, someone, prove me wrong.


duplicate:

I cannot find it on YouTube.

An actual user who avoided a mid-air using ADS-B In (Trent Palmer, if anyone wants to avoid him; not everyone is liked):

As a non-lawyer and non-American, can I just clarify my understanding of this situation:

• Following the accident, the NTSB recommended that military helo flights not fly that route while 15/33 was in use;
• The FAA concurred, and this was implemented on a temporary basis;
• Section 373 of a bill that has already passed the House would allow military helo flights to resume, as prior to the accident, with 'waivers' to let them fly there as they like;
• The waivers could be granted by many military personnel at different levels of seniority, meaning the waivers would be effectively permanent;
• The NTSB had recommended that military flights in DCA airspace should use ADS-B Out, so that military flights could be detected above 900ft in a busy airspace. The FAA and DoD agreed.
• Section 373 takes away the requirement for ADS-B Out, reducing safety.
• Section 373 gets round the ADS-B Out requirement by specifying that military aircraft should only be required to be able to trigger to TCAS alerts.
• TCAS does not activate at low altitudes, such as when landing, so is useless on the route the helos use to pass DCA.
• Therefore the only reasonable safety measure is not to let military flights onto that route while 15/33 is in use. Section 373 reverses that safety measure.
• 'Someone' sneaked Section 373 into the bill, and nobody knows who or when.
• The bill passed without anybody noticing Section 373.
• So unless the Senate challenges, this legislation will go through
• The legislation would make it harder for families to blame the military/government for the DCA accident, by confirming the correctness of protocols at the time
• Chair Homendy is furious.

If I've got this wrong, can you correct me?

I'm absolutely staggered that something this important could have been 'slipped' into a major piece of legislation, without a final read-through of changes since the last version. Surely there's an audit trail of changes and who submitted or entered them?

I believe this incorrect. The easy legal case against the government is that the helicopter crew was negligent. If the protocols were correct that just increases the blameworthiness of the helicopter crew.

Re: AirScotia and the summary in the recent post:

"The NTSB had recommended that military flights in DCA airspace should use ADS-B Out, so that military flights could be detected above 900ft in a busy airspace. The FAA and DoD agreed."

I'm not certain the first sentence above is correct. The letter from the NTSB Chair regarding Section 373 states: "The NTSB has, for decades, advocated for ADS-B In and Out and its substantial contribution to safety, especially near airports."

The NTSB on March 7 issued a pre-preliminary report of sorts, specifically urging immediate action to shut down helicopter route 4 when Runway 33/15 is in use (for landings and departures, respectively). There is no reference to ADS-B in the March 7 urgent recommendation document.

I cannot say how it was that FAA and DoD agreed to start ADS-B Out use by military aircraft in the relevant airspace. But it did not result from the same urgent recommendations, at least insofar as those recommendations were stated in writing on March 7, which led to the closure of helicopter route 4. (I would note that the Preliminary Report by the Board was issued a few days later, on March 11.)

Regarding Section 373's legistative history, to use a term it perhaps does not deserve, there is less mystery than your summation suggests. There certainly are staff of one or both Armed Services Committees, and/or staff of Members serving on one or both of the those Committees, and/or the Representatives and/or Senators who run those Committees, who originated the language, and agreed upon the version that ended up in the legislation (it obviously would have gone through a series of revisions).

So the question is why was their action done without consulting the same people (Committee staff, House/Senate members' staff, and the legislators themselves) whose routine committee work has jurisdiction for civil aviation.

And there's another level also. Where within the defense bureaucracy or some other place in the interagency or executive branch did the impetus for the provision originate? I can see that the post pointing out that the provision, if enacted, would not help the Army in court, is probably correct. What other reason the Army may have had to sponsor the provision (and to do so quietly) I can't say. Which leaves, can it really be that difficult to devise a system for how and when military aircraft with significant emergency or classified operations (as compared to essentially routine operations) need different handling in the airspace?

Administrator Bedford testified today before the Aviation Subcommittee of the House Transportation and Infrastructure Committee. The ostensible calling of the hearing as noted above was for an update on implementation of the FAA Reauthorization Act of 2024 as well as general oversight. As was widely anticipated, several Members questioned the Administrator, at times pointedly, about the presence and effect of Section 373 in the FY2026 NDAA (National Defense Authorization Act), i.e., the controversial provision undoing safety-related changes made in the aftermath of the DCA midair collision on 29 Janaury of this year.

The video link I am including in this post is from the Forbes magazine website (and I apologize that it includes adverts). I don't know if the video link presumably available on the Subcommittee webpage (or it could be on the Committee webpage) has the same time-stamps as the Forbes video and since it's the one I watched, I'm using it here.

The families of at least some of the families of people who lost their lives in the DCA midair were present for the hearing.

Rep. Nehls (R.-TX), Chair of the Subcomm., and the other three leaders each gave opening statements (Comm. Chair Sam Graves (R.-MO.), Comm. Ranking Member Rick Larsen (D.-WA.), and Subcomm. Ranking Member Andre Carson (D.-IN)). Representative Nehls's opening statement hinted that ADS-B Out and Sec. 373 were going to see some emphasis (unsurprising, as Rep. Nehls had already issued a statement decrying Sec. 373).

The Administrator's testimony started at around 19:00. When he concluded, the Subcommittee Chair, Rep. Nehls, opened the questioning (at about 23:00). He asked, in a fairly pointed manner, about the controversial Section of the NDAA, Sec. 373. What did the Administrator answer, readers of the thread (who presumably have far better things to do than watch Congressional hearings) may wonder??

Mr. Bedford responded that FAA policy is not to comment on pending legislation. But he added that the section had shown up in the NDAA without any advice having been sought from or given by the FAA. And that both he and Secretary Duffy have "no intention" of going back to the airspace situation as it was on January 29.

At about 29:15 the Administrator referred to "someone in the Senate" having placed Section 373 into the NDAA. At about 29:45, he noted that after the accident the gaps in the safety situation were closed "and will remain closed." He also seemed to refer to "renegotiation" of the FAA Memorandum of Agreement with the Department of Defense (and at least twice during the hearing noted that the DoD had been good partners with FAA with regard to DCA (and Capital Region, I believe) airspace usage).

Congresswoman Norton also questioned the Administrator about Section 373 (1:47:__) although without much follow-up.

At about 2:15:__ (oops, I didn't note who was questioning) Mr. Bedford again used the phrase, "not going back" to the airspace situation as it existed, and that mixed traffic situations (military and civil) were, "not gonna happen". He noted the Memorandum of Agreement between FAA and the DoD - in this instance not referring to any renegotiation process (whether presently or planned) - and added that he is "not aware of any desire to change it" (close to verbatim, but I'm not a court reporter).

The Administrator's testimony was noteworthy for several other reasons (not counting the evidence the hearing provided that not every single Member of the House of Representatives deserves categorization in MechEngr's "critter" status), and here are two I thought most significant - most significant to a pro pilot audience, that is.

The current Administrator is a very smooth operator and this should surprise no one (and this is meant as a compliment to professionalism). Dealing with sometimes ill-founded questions (to be polite) and a few outright stupid questions takes patience. Beyond that, there were no instances, at least to the extent of my knowledge, when the Administrator ran away from the truth of the situation across the FAA. And he still managed to be a good soldier (so to speak) as a member of the current Executive administration. Without getting into politics but strictly in the realm of operating as a professional, not everyone in high places at the moment has the ability as well as willingness to talk detailed "X's and O's" about complicated federal enterprises while still staying within the lanes drawn somewhere on Pennsylvania Avenue (see? - not politics).

Second, the Administrator provided several answers in his testimony about the status of the modernization program. As a possibly interesting even if small point, I don't think I heard "brand new ATC system" or even just "new ATC system" even once; it consistently was Air Traffic Control Modernization. Substantively, he outlined four layers: copper wire to fiber; analog to digital systems (and TDMA to VOIP); analog architecture in general to digital architecture; and a fourth layer of "compute" meaning that now, each facility has its own computing resources and the program intends to move this into one cloud-based layer. He also emphasized work that has already been done and gave a slam-dunk defense of selection of Peraton, and sorry for this disrespect, to an outright stupid question about FAA selecting Peraton as systems integrator.

(I realize the ATC Modernization program isn't exactly about DCA but in two senses it is; the accident greatly motivated the program to be drawn up and to receive the first tranche of appropriations, and the families of the accident victims were present for the hearing today. And a third factor: the facts about the modernization program are important as a counterpoint to Section 373's troubling content, not to mention its illegitimate sourcing. I have not heard one single voice of a legitimate aviation wise-person, not a single legitimate worthy, say it is a good provision. How modern can the NAS become if something like Section 373 -- no wait, if Section 373 itself actually -- becomes law?)

Link: https://youtu.be/UJM4YsV_hmw?si=116yx6W1AnJaIELY

Some reactions and at least attempts at valid observations.

FAA and ATCOs. Did the Department of Justice's Answer to the Complaint throw the controller(s) "under the bus?" Yes, and no. In brief, the Answer does not state that the controllers' acts or omissions were a cause-in-fact and proximate cause of the accident.

The Complaint alleges a long list of allegedly negligent acts by the controller(s) in Paragraph 250, which starts on page 158 and runs on to 164 (in the Answer). Without having studied the pleadings for hours upon hours (as one might do in actual practice) perhaps I've missed something -- but I think the only admission made by DOJ with regard to the controllers is that a very specifically cited FAA rule or procedure of some sort was not followed: "the DCA local controller did not comply with \xb6 7-2-1(a)(2)(d) of FAA Order JO 7110.65AA, chg. 3, Air Traffic Control (Sept. 5, 2024)." This specific admission is made recurrently in the Answer, amidst many other denials of (again, unless I missed something) everything else in the massive and detailed Paragraph 250 of the Complaint.

Edit [forgot to include]: the Complaint alleges generally the following about FAA and the ATCOs.
"the Federal Aviation Administration\x92s air traffic controllers failed in their two most important priorities, namely to separate aircraft in airspace and issue Safety Alerts when aircraft are in an unsafe proximity to one another; that the air traffic controllers on duty failed to abide by numerous other policies and procedures, including that air traffic control failed to provide traffic advisories to both aircraft and air traffic control failed to resolve an aural and visual Conflict Alert that advised air traffic control that the two aircraft were on an unsafe and converging collision course; and that the air traffic controllers failed in their duties concerning the \x93tower team concept\x94 within an air traffic control facility so that all controllers assist each other to prevent, amongst other things, a mid-air collision. The Defendants\x92 [meaning, both the U.S. and the airlines] collective failures (for which they are jointly and severally liable) caused, and/or contributed to this senseless and entirely avoidable tragedy."

So, "no", because the DOJ does not admit ATC was a cause-in-fact and proximate cause (both needed for liability, if I recall 1-L) but yes, first, specifically with regard to the FAA Order, and second, for all of the reasons ATC Watcher invokes. Whether those several factors would ever be considered for inclusion in an Answer to a big tort case such as this is doubtful . . .BUT especially after the fireworks over Section 373, watch for the NTSB report to lay it all out. (And incidentally, the Complaint now includes several excerpts from NTSB hearing and docket - not sure if these were part of the original Complaint. The Answer is the first pleading in response to the Complaint and it has become the Master Complaint, as I understand it, because it is the pleading on behalf of all the plaintiffs, regardless of whether they are represented by the attorneys who filed the very first Complaint in the case. Further, according to press reports (WSJ print edition today) both the airline companies filed motions to dismiss. Thankfully, or maybe not, my Pacer account is acting up, so, no comment....)

2. The airline and its parent company. The Complaint paints a very negative picture about the acts and omissions of the airline companies and the two pilots of 5342. The Answer was filed only on behalf of the United States (FAA and Army) and so the DOJ does not address the specific allegations forming the claims against the airline - this is standard practice. Still, I found this in the Answer (re: Para. 174): "The United States admits that the AE5342 pilots failied to maintain vigilance and to see and avoid PAT25".

I am refraining from trying to summarize or comment on the many aspects of the story about the airline pilots and airline companies alleged in the Complaint. It is a very detailed story. It probably if not certainly will outrage people in the industry writ large. I've not practiced tort law, either suing or defending, but that won't stop me from saying that it seems pretty clear that the trial lawyers are gunning for the airline company deep pockets, the availability of punitive damages when those are not awardable against the Federal Government, the availability of a jury trial, and insurance policies. To state the obvious.

As for the Army, Para. 253 starts on page 168 and runs to 176; the DOJ admits some but not all of the many specifically alleged negligent acts and omissions by the Army and those pilots.

One other little item caught my attention. In paragraph 106, reference is made to "risk assessment" stuff the Army aviation unit conducted or did not conduct. "Risk Assessment", that wouldn't be the same thing as showed up in Section 373, by chance?

(For information, the case number in federal district court in D.C. is 1:25-cv-03382-ACR.)

Absolutely agree.
The Air Current just published a review of those systemic failures. Well worth the reading time. (And TAC publishes stuff on safety matters freely available, not behind pay wall.)

It won't endear anyone to the people running the show in the federal interagency and who have responsibility for the conceptual design, architecture and implementation of the U.S. "ATC Modernization" programme (European spelling done deliberately here) but it strikes this SLF/attorney as remarkably clear that unless a full accounting of what went horribly and tragically wrong in DCA airspace on the night of 29 January 2025 is done and done tranparently, any hope for a successful rebuilding of the ATM components of the U.S. NAS is about slim, to none. Just one small but illustrative example. ATCOs at DCA wanted "hot spots" of potential traffic conflict noted on charts. FAA HQ denied the request. Why? It didn't have in place a standardized method of marking such notations on charts. This actually was testified to at the Board hearing.