Posts about: "Normalization of Deviance" [Posts: 63 Page: 3 of 4]¶

Absolutely, but the other side of the normalisation of unsafe practices coin is Local Controllers conveniently believing that pilots have instantly picked up distant traffic visually and granting their request!

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

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

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

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

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

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

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

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

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

Does this fit the definition for 'normalisation of deviance' provided by Capn Bloggs a few posts above? ("Normalised deviation means deviating from published (perportedly safe) procedures, with no adverse consequences, so the deviations continue. In this case, it's pretty obvious that the "published procedures" were flawed in the first place.") I think it does but .... that's why I'm asking.

It does.. About the flawed published procedures , I do not know what standard they use in the US, . Maybe someone here does, because establishing a route a 200ft inside a CTR crossing a runway approach path would not be possible in Europe, First we have SERA ( Standardized European rules of the air ) which mandates a minimum of 500ft , above highest obstacle Then the design : . If I take the Paris TMA as example where heavily helicopters routes exists between the 3 airports and the heliport , the minimum altitude on those routes is 700 ft .and none the routes conflict with any runway approach path .
Then 3rd , if you have to be designing a conflicting route system , it would be procedurally clear that the 2 could not be used simultaneously . In other word , here in DCA, when runway 33 is in use for landing . Route 4 would be closed, and vice versa, when you have an Heli on route 4 you can't use runway 33 for landing.
But it is not only DCA, I have been flying regularly VFR in Vegas a few years back , and what the tourist helicopters companies were allowed to do there was. let's say " amazing " compared to what we are allowed to do in Europe.

Are there procedures published? If Yes, was everybody following those procedures?

If Yes, no normalisation of deviance. The procedures themselves were/are flawed, not the execution of them.

If No, then there's normalisation of deviance. The users are not following the procedures and if those procedures have been in place for some time, the users have been "getting away with it" ie NoD until now.

Not necessarily as simple as that. As I opined much earlier in this thread, there may be nothing fundamentally wrong with the procedures in themselves - they stem from international standards and variations are used the world over. But the procedures need to be applied in appropriate circumstances in an appropriate manner. The normalisation of deviance, if involved, may have been the application of the procedures by people untrained/unaware of when it might (or might not) be appropriate to use them.

That would perhaps be a standard definition of "normalization of deviance". But I think there is a possible extension of that definition, which allows for the procedure to be flawed or open to interpretation, and considers "deviance" as departure from safe operation , even while the procedure is technically observed. It could also be the case that the procedure was initially valid, but became marginal as a result of changes in its area of application since its inception.

Each time someone gets away with a close call, the "normalization" sweeps the issue under the rug, instead of the procedure being questioned. The longer the procedure is in use, the more confidence there may be that it is acceptable, when in fact it may just be a matter of time until some unlikely and disastrous event occurs "by chance".

Having worked in a non-aviation area that became heavily proceduralized after all too many mistakes had been made, I have seen more than a few flawed procedures that continued to be employed despite warning signs, typically because of time, management, cost, etc. pressures. Modifying and reviewing a procedure can be a time consuming process as many individuals and management structures can be involved in a complicated system.

In the present case (without knowing exactly what procedures were in effect), I could argue that permitting visual separation at night in this particular environment was a key procedural flaw. But it was accepted as there had been no accidents as a result, even as perhaps traffic density, etc. increased risk over time.

The procedure calls for the heli pilot to report "traffic in sight", which they did. The unsafe part is that likely they hadn't actually seen the traffic.
Visual separation at night is less of a problem if you follow the procedure as intended and don't report "traffic in sight" until you have correctly identified which traffic you're supposed to see.
We don't know if the heli crew thought they had seen that traffic (but picked the wrong one) or not, though the CVR conveys the impression they didn't, because they didn't talk about it (like they did about other traffic earlier in the flight).

It's also difficult to judge distance if all you see is a light, in your night vision goggles.
And it's especially difficult if you fail to predict the other aircraft's maneouver. The CRJ rolled out on final only 7 seconds before the collision. Until then, from a purely visual standpoint, everything would've looked fine. It required the heli crew to be aware of where the runway 33 extended centerline was (and where they were) to avoid being where the CRJ was going.

Thais reminds me of the trail of the "Herald of Free Enterprise" ferry back in 80s. The Company procedure was clear : it was prohibited to start moving the RORO ferry if the front door was still open . But it had become common practice to gain time ,to leave harbor while the doors were closing When the guy in charge of the door overslept during his break the door remained fully open while the ship was leaving port , and when accelerating water came in and the boat capsized .killing 200 people . During the trail the company executives showed the SOP, and got away with blame , The Guy that overslept and the captain took all the blame . (All this from memory , check Internet for the full report if you want more info)

We could maybe potentially see something similar here , blaming the PSA captain for accepting without prior briefing a visual Circle 33 to gain time , things he probably had done many times before to the satisfaction of his employer .

@ WillowRun 6-3 : Is normalization of deviance a mitigating circumstances in the US legal system ?

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.)

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.

Thanks WR-6-3 for the legal perspective , Extremely enlightening for a non-law savvy person like me .I like the " hot dog-warm puppy" analogy between a trial and the truth . Looking forward to the actual trial and your comments on it when the day will come .
@ IgnorantAndroid : I am aware of that as this is what the controllers hang on to since the beginning , since they were trained like that and thought they were just following the rules . . However we are a safety business ,. It is not because it is legal than it is safe

Which safety assessment was made and validated ( and by who) which allowed visual separation for an helicopter at 200ft to pass below the approach path of an aircrfat at 3 or 400 feet ?, resulting in a 100-200ft separation ?
That is the question I would be asking first.
How about which actions were taken after the previous incidents , and possibly acting on the normalization of deviance , would be the next .

You may bet:
1. These persons, making such SA, won't be part of any investigation especially not part of court trial process.
2. Bad systems do not have independent and respecred SA - that is the first reason- why they are bad for workers, customers and society
3. Last, but no least, it is very hard to prove financial benefits of making independent SA and respect it afterwards.

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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?

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!")

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]).

The legal approaches are like sweeping up after the 'Lord Mayors Show' (a parade with horses).

The core issue remains that of air safety;

An independent US view focussed on safety:- "The night everything at DCA finally went wrong"

https://theaircurrent.com/aviation-s...pecial-report/

Lessons that aviation can learn now, without waiting for a trial or raking though the embers of investigation.

Note the heat map of reported incidents - the data existed, but not acted on.

"\x85 only one pilot out of four interviewed by the NTSB had an accurate and complete understanding of the structure of the D.C. helicopter routes \x97 an individual who happened to have seven years of prior experience as a military pilot in the area. Two pilots had no awareness that published routes for helicopters even existed." And other telling quotes.

Knowledge, information sharing, published approach charts, normalisation of deviance (Dekker); a systemic accident (Reason).
'Safety' is easy with hindsight, but there are many people who's job is to have foresight - to review and act on reports, at least ask 'what if', to think about, and seek an understanding of every day work (Hollnagel).

flyingformoney777 provides a summary of the NTSB Board Meeting.
Runs 25 minutes.

I would argue that both NTSB and Flying for Money used complacency when the term Normalization of deviance,

Flying for Money articulates that the cost of admission into the airspace for VFR traffic was pilot initiated visual separation.

I don't understand why the helicopter routes do not have a lateral dimension i.e. track via XXX, remain EAST of a line XXX to XXX. Defined lateral dimensions then allows lateral separation applied to be based on a thinner line, rather than a broad line as per the current charting.