Posts about: "FAA" [Posts: 266 Page: 11 of 14]¶

H 'n' H.
Ordinarily I have no objection to lawyer bashing (and I've been known (in non-anonymous mode) to tell one or more good lawyer jokes).

Before stating why I object to the aspersion you've cast on legal types in the context of the DCA mid-air collision and the litigation arising from it, I'll suggest that probably most all forum posters (and readers), if not literally all, have heard either an ex-husband or ex-wife relate their unrequited frustration and anger at how the other spouse "got everything", "ripped me off", "took me to the cleaners" and so on. And then someone else will say, "yeah, and the lawyers are the only ones who profit in a divorce." The contradiction is rarely called out, but it is no less a contradiction.

But as to this case. The passenger manifest of the PSA flight isn't necessary to make this point, but I'm sure the estimable Mr. Clifford would consume hours of argument and pages of supporting documents making it clear that 64 lives were cut short, and many were people in the prime of their adult lives - not that one life should be worth more than any other life in compensation in court proceedings, but taking for example the relatively early career attorneys who perished in the accident, their earnings potential over the course of their careers is less speculative than, say, projections about one of the youthful skaters (although I'm pretty sure there are standards which have been worked out in the mine run of personal injury and wrongful death cases). My point is, this case will yield quite significant damage awards in the end. Yes, I realize that issues of immunity of federal agencies will have to be surmounted; having posted a lot about theses issues I realize they exist. Yet the citations of FAA orders, procedures, and rules in the Complaint does suggest that plaintiffs are ready to overcome the immunity argument. And I'm leaving for another day and place the consideration, how do you think it would affect the FAA in the long run to argue that "na na you can't get me" because of "legal technicalities" when it is pretty predictable at this point that NTSB in its final report will be, shall we say, either unkind or unsparing to FAA, or both, in assessing causes and effects.

So the case is likely, if not certain, to pay out big. The lawyers will get - unless legal counsel are using very different formulas than are typical in cases of this type - about one-third.

How is it then that only the lawyers do well? The argument is not about whether big-ticket damage awards can replace a lost loved one. The argument is about whether only the lawyers do well. "Grief" begins with the same four letters as "Grievance" and the crash victims' families certainly are individuals aggrieved by the negligence of some or all of the defendants. Maybe we can split semantic fibers over whether having their grievance abated by significant financial compensation is within the meaning of "doing well" - but under the facts of this case and their tragic losses, I think they will be at least "doing better". And so not only the lawyers.

This all having been said, apologies accepted, naturally.
WR 6-3

I can see exactly where you are coming from Capn Blogs so I don't blame you at all for your comment above! After all, you can say exactly the same for Aircraft Certification too....... This is my take on it which I put out there...............

This is where a SMS needs to look again at things and then decide what else, if anything, needs to be done. Part of my background is from Safety Engineering (where I was put through a SE MSc in the 1990's by my then employer) and processes such as Hazard Analysis takes into account both material failure as well as operational failure - and here we have "airspace design" and then the "operation of that airspace". When designing a bit of kit you apply the Regs as part of the design hazard analysis. But that is the minimum (tick VG) - after that we then ask "And is it actually safe?". Regs generally provide for a "minimum safe standard" which, all being well, will see us through - 100%. If not, we'd have aircraft falling out the sky with regular abandon! But that's assuming that those who write the Regs have got it right (or, in this case "designed the airspace" and then created the "operational rules" for that design). They can make mistakes as much as anyone else. One would hope for rigorous QA checks and so on ......... but this is where even organisations such as the FAA can, over time, become institutionalized with poor practices/cost cutting/etc/etc.

On an operational side of things, I've often, as an Engineer, reduced servicing intervals to less than those recommended where I've had issues with a bit of kit on a particular airframe*. I've released the aircraft back into service with an Engineering Limitation which has called for more frequent inspections than the Rules ask for while we try and ascertain what the issue is and if there really is a trend starting. If as an operator you believe something to be unsafe, you must address it. How did I know to reduce the servicing intervals? Sometimes it was a Maintenance Engineer calling me over and saying "Hey, Boss, have you seen this? What do you think?". Other times it's because trawling through Stats, a trend has started to show which, in the noise of day-to-day operations, was invisible - but look back over 6 months in a Spreadsheet and, hey, what have we here? We used to get regular print-outs from our Maintenance databases for just this reason - in the 1980's!

The FAA, in the wake of this accident I suspect, has issued this on the considerable extension of SMS's - but only in Apr 2024. But this is not new stuff - SMS's have been around for years. My first brush with it all was way back in 1980 - we called it something different then but that's what it was! Here in the UK, the CAA published CAP 795 - Safety Management Systems - Guidance to Organizations back in 2015, the purpose of which " .......... is to provide guidance on the implementation of Safety Management Systems (SMS). It has been developed to give sufficient understanding of SMS concepts and the development of management policies and processes to implement and maintain an effective SMS. It applies to Air Operator\x92s Certificate (AOC) holders, continuing airworthiness management organisations, maintenance organisations, air navigation service providers, aerodromes and approved training organisations. ".

Now, this is where you are absolutely spot on and is also what I said in my previous post - such additional "safety nets" will almost inevitably cost more so the Finance Director is none to keen. The usual "Operations/Engineering vs Finance" standoff.......! The long-debated issues at Boeing is also being blamed on exactly this over in "Rumours & News". What's that saying? "If you think safety is expensive, wait till you have an accident!".

Anyway, that's my take FWIW and hopefully it explains why I said what I did! Cheers, H 'n' H

WR 6-3 , again, my apologies and please rest assured my comment was very tongue-in-cheek hence my initial apology! That those who suffered from this tragic accident receive recompense as a very poor substitute to not still having their loved ones with them is absolutely essential! My comment was more along the lines that it looks like determining culpability will be quite convoluted...... hence the "lawyer" quip. If it came across as otherwise I, again, unreservedly apologise!

* Re increased servicing, even that has to be approached with care. In the late 1970's, we lost a helo when someone applied more grease then they should have as "....... well, a bit more will be even better!". Murphy's Law can be a right bu&&er!

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!!!!!

As long as you are in law prof mode one immediate issue appears to be the fact that the complaint asks for a jury trial but the FTCA does not provide for jury trials. So I guess the case may have to be split in two. But another possibility appears to be the case may proceed with a jury trial but the jury's decision will only be advisory as regards the government defendants. Speaking of the government defendants is the government obligated to provide a consistent defense or could we see one government lawyer representing the FAA blaming everything on the Army and another government lawyer representing the Army blaming everything on the FAA?

I think it is unreasonable. Those crews probably do that runway change often, and would do it blindfolded. As for workload, I agree with Layman; the workload, even if they had briefed it, would have been the same.

Clearly not a pilot, again. Pilots, especially of multi-crew aircraft should NOT have to listen every transmission to every other aircraft to "maintain situational awareness".

This is the problem with enthusiastic amateurs and blood-thirsty lawyers: all these peripheral issues take centre-stage and the real causes are not addressed. Easier to spear the pilots of the CRJ for not doing a unneeded briefing or missing a TCAS alerts than get the FAA and army boffins that approved that sh1tshow in the first place...

Retired airline pilot here and I don't need to hear all ATC transmissions, just the ones that have anything to do with my aircraft.

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.

I did not use the words "maintain situational awareness". I'd be hard pressed to pin down when SA is "maintained" and when it is not. To my understanding, SA is something you can have more or less of, and having more is safer, and has prevented some accidents in the past.

I also don't advocate for that issue taking center stage, but to taboo it and to say we can't talk about it ever doesn't seem right, either. The central issue in this accident is ATC's decision to routinely leave separation in the hands of a heli crew with night vision goggles and less than 75 feet of procedural separation. But we all know this by now if we've watched the NTSB presentation, so please excuse me for not repeating this with every post.

The central issue of the lawsuit is whether the level of safety provided by FAA rules, FAA/ATC procedures, Airline decisions and SOPs, Army decisions and SOPs, and pilot performance on the day are sufficient to legal standards. It's a complex interplay of factors, and even though it's clearly far from the deciding factor, I'm not going to say that a late approach briefing did not matter at all.

Not doing a briefing on this approach would be an argument if the briefing included out-of-position traffic crossing the flight path. I suppose that admonition is a constant, but the physical arrangement of the windows in the jet and the near constant bearing camouflaging the helicopter against the city lights may have rendered that an impossible task. The same admonition applied to the helicopter crew who would have had a view of the landing lights and the navigation lights well above the horizon, but had purposely been equipped for this flight with view-limiting goggles.

The benefit of suing the airline may be to allow the airline to use that as leverage against the FAA and the Army over their losses and maybe pressure both to take steps to eliminate the possibility of happening again.

Have I just missed it or has the US Army been very quiet about this event and what changes in procedures and equipment they might make?

Anticipating what may be a scathing NTSB report, and certainly will be a highly critical report, the FAA and - through some interagency process or similar path through the bureaucracy - the Army as well will already be experiencing significant leverage for reform. Perhaps it will be unprecedented leverage given the almost incomprehensible series of errors which occurred in this accident (not actually incomprehensible, because they happened in fact). And although it makes sense that the airline defendants will have their own reasons for trying to leverage significant reform, one has to wonder to what extent the airline industry as a whole already is taking as strong a position as possible on the many issues in the looming massive spending on new ATC technology and facilities, and (hopefully) new ATM architecture overall.

As for the Army's public presence about this accident, no, you have missed nothing. The Army's witnesses at the NTSB hearing were (imo) well prepared for testimony, but if any other public statements by Army officials have been made, I've missed them too. I would note that one of the purposes of the PAT flights is continuity of government missions. Obviously this would not be a subject on which the Army (or anyone else with official knowledge of and responsibility for same) will be saying much of anything.

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

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

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

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

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

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

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

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

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

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.

As a non-technical poster on this forum I sure as shucks won't comment on the ADS-B content of the proposed legislation. But point 4 of the summary:
"Directs the Army OIG to initiate a safety coordination audit. The Army Inspector General has declined to voluntarily review the Army's aviation safety practices. The Inspector General would conduct an independent review of the Army's approach to safety."

Why does this not make real sense?

The NTSB will very likely (undoubtedly, I think) include, in its report, quite extensive findings about the Army's operations. It was at least very unusual, if not unprecedented, for the NTSB to issue urgent recommendations to FAA in the immediate aftermath of January 29 with regard to use of the helicopter routes. On these facts, why is it not sensible to require the Army to undergo an IG review?

Although without a service record, I do generally understand the idea that the Army's task and purpose is lethality, at least in the meaning of that term before the assemblage at Quantico earlier this fall. Surely operating in domestic airspace doesn't make safety irrelevant "becasue lethality", does it?

One other aspect of this tragic and from many perspectives senseless midair collision is that very dedicated professional people in the aviation field are going to have their respective actions and failures to act in the events of January 29 scrutinized in the most harshly critical light in a courtroom. Bluntly, their performance will be trashed - the Army pilots, one or more controllers, and as discussed recently on this thread, the airline aviators too. On these facts, and hoping that reasonable minds may differ, I think the IG review isn't just a sensible idea, it's a necessity. It is something owed to those people, who are not going to speak up in their defense, or in their eternal regrets, from the great beyond. The least the United States can do is to find out what to do better. I'll work for the IG project, gratis, .... if they'd take me.

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.

I personally do not think ADS-B on the helicopter would have changed anything , From what I understand , if it had it could have been spotted earlier by ATC , the conflict alert might have sounded a couple of seconds earlier , etc .. pure speculation .

It would not have changed much for the AA CRJ either , the TA would have been more precise and maybe a second or two earlier , but he had already 2 TAs and most certainly so short from landing the PF was focusing on the PAPI not his TA display

It might have changed something if the Heli was equipped with a CDTI ( ADS-B in display) as it is a powerful tool to help identify traffic visually. But not separate yourself from another aircraft . One thing people in offices making such statements forget is that to provide separations maneuvers ATC needs a stable radar picture , with antennas firmly on the ground facing North . Inside an aircraft constantly moving the picture moves with it , (as you can see on your TCAS display ) Extremely complex to separate yourself using that kind of picture when both you and the target are moving. AWACS operators are trained to do this , but not your average pilot .

So I think this ADS-B on the Military Helis is a red herring made by politicians wanting to appear to \x93do something \x93 and perhaps distract the public from the FAA and regulator failures on both the design of the airspace / routes and the lack of action after numerous previous serious incidents reports ,

I disagree. The operating theory was that the helicopter crew was looking at a plane that was farther out and not the one they hit. If they had had the presence of mind to look at an ADS-B display they would have seen two airplanes, not one, and seen the one they THOUGHT was #1 was really #2.
Can I add some sympathy for the AA crew - A night over water runway change on final combined with dodging traffic is a LOT to ask of anyone. I can't say for sure what they would have done with ADS-B on the chopper, they said they would miss us, not by how much and we are 30 seconds from landing. The benefit here is the helo crew realizing they are dodging the wrong airplane.
* full disclosure, I have had a close call with the helo traffic there more than once, back in the day they did some crazy stuff. I would have LOVED to have seen them coming on a screen if such a thing had existed.

I think we misunderstood each other or I was was not clear enough : I was refereeing to ADS-B out not in ;
That would mainly be for the benefit of ATC .
ADS-B in, together with a CDTI, is what I said to be L So in fact we both agree .

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.

In respect of the Army pilots' height keeping, how relevant might it be that the FAA Airman Certfication Standards for helicopter instrument ratings (IH.IV.A.S1 and elsewhere) specify a required accuracy of plus or minus 100 feet? An argument that the pilots were negligent for deviating by less than that would surely be open to challenge, even before considering that they were flying visually and therefore would have been expected to spend more time looking outside than scanning instruments (leading to less accurate height keeping). This would bring the focus squarely back onto the FAA's airspace management and control. Was it reasonable to expect pilots to fly at precisely 200 feet, plus or minus zero?