Posts about: "FAA" [Posts: 266 Page: 12 of 14]¶

What has that got to do with this event? They were not on an IFR flight plan.
Also, as an aside the term "altitude" is typically used in aviation. (Yes, I know that DH for a precision approach is "decision height"...and HAT is shown on approach plates (Height Above Touchdown).

Thank you, I am a professional pilot so I do understand the difference in meaning. 'Height' is the correct term here as the route was defined with reference to the surface and the pilots were using the (badly named...) radalt as their height reference.

Why do I think the IFR ACS might be relevant? Because it specifies the accuracy the FAA requires of skilled pilots when separation is to be achieved by procedural means. The fact that the "designed" separation between the 33 approach slope and the top of Route 4 was less than the allowable error for skilled pilots could be used to rebut an allegation of negligent flying as the cause of the accident. The Army no doubt has its own standards document, but I'd be surprised if it was radically different. Building the argument off the FAA's own document forces the focus onto its route design and visual separation procedures.

As to why this might be relevant to VFR flying - is it your opinion that parameters should be flown more accurately in VFR than in IFR? In any case, I have now dug further into the ACS and the same tolerance is prescribed for commercial VFR helicopter operations (see CH.VII.A.S8).

Thank you, I'd missed that. And on re-reading the preliminary report, I see that the NTSB described the routes using amsl. So I stand corrected on the route definition. That brings altimetry errors into play for erosion of the "designed" separation margin, which makes the design even more unsafe. But the point remains that PAT25's 78 foot deviation above the route maximum altitude is within the FAA's tolerance for commercial and instrument flying accuracy by helicopter pilots.

Nothing I'm saying in this post is meant to exonerate FAA or deflect responsibility away from it.

That being said, even though the FAA published a certain tolerance, and the helicopter's 78 foot deviation was within that tolerance, I think it is quite likely (if not certain) that on this particular subpart of the overall factual record, the plaintiffs will argue that the Army knew or should have known that despite the deviation being within the tolerance, such a deviation nonetheless was significantly unsafe and therefore negligent on the Army's part. It would be argued that the Army had a legal duty independent of what FAA published to operate its helicopters safely. The acts and omissions of more than one actor in a given situation can be oustide the established duties of care and therefore negligent. (I'm imagining that military aviators may disagree insofar as it may be an article of faith as well as military regulation that the FAA is absolutely the one responsible party for civil controlled airspace, but as a legal point I think plaintiffs will attack it.)

Route 4 wasn't restricted to use by military helicopters, so it should be possible to argue the unsafe design point based purely on the FAA's own specification. As to expectations that the Army pilots should have flown the route to tighter tolerances, even a tolerance of plus zero would have been grossly unsafe on a procedural basis: altimeter errors alone would take up most of the 50-odd foot "separation", and variances in airliner approach slope angle the rest. Besides, "plus zero" is an impossible tolerance to achieve when maintaining an altitude or height. The only way of flying that route not above 200 feet on a "IFR-esque" procedural basis with an achievable tolerance would be to fly 150 feet plus or minus 50 feet, which would demand total focus on height keeping via radalt (it would be hopelessly unsafe to attempt to fly that low on barometric instruments).

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

Bit of historical background : when designing this route decades ago they must have followed basic ICAO/ FAA principles . separation IFR-VFR is 500 feet . allowed deviation then was 100 ft either way , so even if one a/c is 100ft above and the other 100ft too low , there would still be 300 ft separation preventing a collision ,
When that was introduced decades ago I bet you a bottle of (real) Champagne that the procedure was use of that route 4 was restricted during RWY 33 arrivals and RWY 15 departures. It was one or the other but not both simultaneously .
How , when and why , over time , did it degraded to the point that this restriction could be disregarded would be interested to investigate and unveil . The why I think we know, i.e. enabling to move more and more traffic, but when and by who we don't. How and on who's pressure did the numerous previous incidents got disregarded is another question worth asking . Not why the Heli pilot was flying 78 ft too high .

Throwing the Heli pilot (and perhaps also the controller on duty) "under the bus" as you say in your country, would be so wrong as it would prevent getting to the truth and learn the real lessons of this accident .

I'vd argued before that any route that does not achieve 500ft above terrain is unsafe by the FAA's own standards, for much the same reasons.

Agreed.

If the helicopter hadn't called "traffic in sight," they would've been instructed to hold until the CRJ was clear. In general, a VFR aircraft saying "traffic in sight" is effectively exempt from such procedures.

https://www.faa.gov/media/29701

You're right, it does, to a certain extent. But IMO it's a civil airport and the FAA is primarily to blame; it would have "allowed" the choppers to fly that route. The Army wouldn't have just barged in there on it's own, ignoring the obviously stupid procedure.

The process "to investigate and unveil" the key facts about simultaneous use of Route 4 during RWY 33 arrivals and RWY 15 departures will more likely be the NTSB investigation and not the pre-trial discovery activities, pre-trial motions, and trial in the lawsuit. The object of the lawsuit, despite what my esteemed colleagues in the legal profession may insist, is not "getting to the truth" or "learn[ing] the real lessons of this accident." (In the first season of the t.v. series N.Y.P.D. Blue (circa late 1993 early '94), one of New York City's Finest was charged with homicide. In a talk with her big-time defense attorney, he reminded her that a "trial" and "the truth" have about as much to do with one another as a "hot dog" and a "warm puppy.")

Unless all the possible plaintiffs intend to proceed with the same lawyers who already have filed a Complaint in federal court, other complaints with perhaps different approaches to the facts and the law are to be expected. But at this time, I think there's pretty strong reason to understand the Complaint which was filed as pitching the ATCO and one or more of the helicopter pilots directly toward a large Greyhound. If, after finding time (and attitude) sufficient to read every single word on every single page of the Complaint very closely, I realize that plaintiffs' counsel have not done so in the current Complaint, I'll frame some correcting post.

As a somewhat related point, and without intending to be a flame-thrower, what about the airline pilots in this matter? Imagine being one of their immediate family. The passengers and cabin crew will be part of the overall group of plaintiffs. With the allegations in the current Complaint, the pilots are being alleged to have operated the flight negligently - is this not a fair and accurate reading of the Complaint? But if this accident was caused - in the sense of the actual realities of flight operations and airspace and all the other actual aviating facts - by the airspace design and operation, and the wrong time and place flight of the helicopter - why aren't the families of the pilots entitled to their day in court as well? And I don't mean day in court just to defend their actions against allegations as in the Complaint, I mean in claims against the FAA and possibly the Army....... oh sure, sue the United States? I'm guessing the airline corporate entities which are defendants probably would not think that would be a good idea. And neither would airline industry trade groups - but maybe this is something for former New Hampshire Governor Chris Sununu to tackle in his new role as CEO of Airlines4America. Something that seems to be part of this is that the airline corporate entities are well-insured. But what good does that do for the families of the two pilots? - answer, it doesn't do any good for them, other than a probable off-ramp for the entire case at some point down the litigation timeline. And still without the families of the two pilots having their day in court to claim rights and remedies against the real causal agents of the accident. End of rant. For now anyway. (See perhaps Rule 24 of the Federal Rules of Civil Procedure, re: permissive intervention)

The reason I brought this up was the contention by some earlier posters that there was an obvious case for negligence on the part of the Army pilots. I took that to be based on their 78ft breach of the route maximum altitude, which would obviously be an easy thing to prove (notwithstanding my point that the FAA only requires pilots to fly to an accuracy of 100ft). However if, as you say, the altitude restriction wasn't relevant to the accident then a case for Army pilot negligence would have to be based on their failure to see the CRJ, and that would be much harder to make out. It was argued much earlier in the thread that they probably saw the AAL aircraft on final to 1 and misidentified it as the CRJ. I think that would be difficult to argue as negligent.

I agree with you, by the way - my point being that the case for Army pilot negligence isn't as obvious as it might first appear.

You mean no SA was made because this scenario was not even considered ? That makes things worse for the FAA if this local "visual " procedure was written down somewhere or even just tolerated , because as I understood, it was standard practice .I am not sure if you know how safety assessments are made , but you must consider every possible scenario when designing procedures.


From a European / EASA perspective :
Re the "Lateral separation" you mention : in that scenario so close to the Runway threshold it would mean only a left turn is possible, i.e. away from the thresholds of both runways , it would mean flying over build up areas , and doing so at 200ft above buildings with possible antennas on top , etc.. ,not really safe , and definitively not at night . As to \x93pass behind\x94 , the standard wake turbulence separation criteria would not be met , especially passing behind/below and I would not even try that at 200ft under a large jet..

So , applying standard safety assessment criteria , allowing visual separation to aircraft on that route, even less at night where danger of mis identification is increased . would definitively not be considered \x93 Safe\x94 .

During the interviews, one Heli pilot from that same group ,mentioned that asking for visual separation was a routine request , even if you did not see the traffic at time of the request . That fact alone, if really proven to be systematically the case , would also add to the normalization of deviance case and put full responsibility on the regulator, not the pilots

Visual Flight Rules aren't a local procedure.

I agree. The prudent thing to do would be to not call traffic in sight and let the controller give you a hold. But first you'd have to know the plane is there.

If that was/is happening, that's a huge problem. But I don't understand how the FAA would be responsible. Visual separation is initiated by the pilot, when they say "traffic in sight." Controllers sometimes prompt it (e.g. "Do you have that traffic in sight?"), but that didn't happen in this case. A pilot should never call traffic in sight unless they truly have it in sight and are completely confident that they can maintain safe separation. I do get the impression that the Blackhawk pilots may not have fully understood that. Both from the NTSB hearings and the ATC recordings (the way they don't even wait for the controller to finish speaking before shouting "traffic in sight request visual separation!")

This is a good point about the airline pilots. I expect their heirs will retain their own lawyers to press their claims (very similar to the passenger's claims just without any allegations that the pilots were negligent) against the government perhaps in a different trial. I don't think pilot's estates are named as defendants in the current lawsuit so they may not be involved at all in this trial.

As for the airline I would certainly expect them to sue the government at a minimum for the value of their airplane. And perhaps other stuff like any death benefits due to their crew, any expenses involved in responding to the crash, any reputational damage, their legal expenses and so forth.

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]).

((Long pause.....))
1. Facts. The NYT does report the House passed its version of the NDAA. The NYT further reports that the provision at issue does "not appear in the Senate version" of the NDAA which the upper chamber previously passed. Though I have not worked on any Capitol Hill staff, it still is safe to say that there will be a conference between the two bodies to iron out a final version acceptable to majorities in both chambers.
NOTE: the NYT also reports the strong objections of the aviation sector leadership in the Senate, on an actually bipartisan basis. This includes the Chair and Ranking Member of the Senate Commerce Committee (Sen. Ted Cruz (R-Texas) and Sen. Maria Cantwell (D-Wash.), respectively, and the Chair and Ranking Member of the Committee's Aviation Subcommittee (Sen. Jerry Moran (R-Kansas) and Sen. Tammy Duckworth (D.-Illinois)). Doubtless few need to be reminded that Senator Duckworth, currently the Land of Lincoln's junior United States Senator, flew helicopters in the United States Army in armed conflict and actual combat during which she was severely wounded. I don't want to get bumped into blasting jets but I don't see the provision at issue as a wise legislative manuever or that it is wise to make Sen. Duckworth really angry about an aspect of helicopter operations in Washington, D.C. airspace.

Further, NTSB Chair Homendy, per the NYT: "Nobody actually knows what a commercial aviation compatibility risk assessment is". She also reportedly noted that the legislative measure does not task this assessment, whatever it might be intended to cover or what process it might be intended to utilize, to the FAA. Designation of a service secretary and the Secretary of Transportation as authority for issuing the pertinent waiver is not the same thing as tasking the process to FAA, first, as a strictly legal and legislative matter, and second, as a fact of life in the interagency.

2. Interpretation. Cynically, one could assert that this provision is another instance of the drive toward almost unlimited or, as a practical matter, effectively unlimited executive power.

Presumptuously, one could instead assert that somewhere deep inside the national security or intelligence bureaucracy, there is some as yet undisclosed risk or development which requires the Army or any other service to operate helicopter flights in a manner the same or very similar to the procedures allowed prior to the accident.

It may be poor form to transfer the phrase from its original context, but I think the provision at issue produces shock and awe, except that the awe is in the nature of disgust.

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.

From the Committee website; Rep. Nehls also has issued a statement opposing the NDAA provision which has elicited vehement objections from NTSB.

Washington, D.C. \x96 Aviation Subcommittee Chairman Troy E. Nehls (R-TX) announced that the Subcommittee will receive testimony from Bryan Bedford, marking his first appearance in front of Congress as Administrator of the Federal Aviation Administration (FAA). Subcommittee Members will have the opportunity to discuss recent regulatory actions taken by the FAA and current issues in aviation, and seek updates on the continued implementation of the FAA Reauthorization Act of 2024. The hearing, entitled, \x93The State of American Aviation,\x94 will be held at 10:00 a.m. ET on Tuesday, December 16, 2025, in 2167 Rayburn House Office Building.
Witness List:

The Honorable Bryan Bedford, Administrator, Federal Aviation Administration, United States Department of Transportation