Posts by user "WillowRun 6-3" [Posts: 100 Total up-votes: 113 Page: 1 of 5]¶

CNN reporting generally ATC transmission in which another flight stated that it had witnessed the collision. Will be valuable information for investigation.

Dumbfounded by midair in this airspace.

On the take-out question, this SLF/attorney would vote "Aye", it meets the essential (if also somewhat implicit) criteria for such type of incursion.

On the POTUS characterization, in his defense, it may be noted that the "it should have been prevented" phrasing is the President's shorthand way of saying 'things like this would not happen if things were done my way' (like a couple of armed conflicts going on which opened in the previous administration, for instance).

[Mods: have not caught up on thread beyond quoted post, just fyi, W-R]

Long version of Wall Street Journal article about changing DCA airspace use rules, from WSJ website (summary in print edition Feb. 12):
__________

Federal air-safety officials want to permanently keep helicopters away from commercial jets taking off and landing at a busy Washington, D.C., airport after the deadliest U.S. aviation accident in more than two decades.

The move, under consideration by senior Federal Aviation Administration officials, would be part of a long-term plan to improve safety at Ronald Reagan Washington National Airport, according to people familiar with the discussions.

Helicopters have been temporarily barred from flying in a corridor used by the U.S. Army Black Hawk that collided on Jan. 29 with an American Airlines regional jet, killing 67 people. The chopper routes have been used to ferry senior military officials around the region and to train for a \x93continuity of government\x94 mission in the event American political leaders need rapid evacuation from Washington. Other government agencies have also used the routes.

Federal officials have said they would revisit the helicopter restrictions once the National Transportation Safety Board issues a preliminary report on the accident in the coming weeks. Preliminary indications from the probe point to multiple factors potentially contributing to the crash, including the design of the airspace, as well as actions by the helicopter pilot and air-traffic controller, according to people familiar with the investigation.

The NTSB said it would examine how far apart planes and helicopters are supposed to be while flying in the airspace.

Transportation Secretary Sean Duffy has criticized the Pentagon\x92s operation of helicopters near the airport. \x93If we have generals who are flying in helicopters for convenience through this airspace, that\x92s unacceptable,\x94 he said last week. \x93Get in a damn Suburban and drive. You don\x92t need to take a helicopter.\x94

The Army said it would continue to comply with FAA requirements and restrictions to enhance flight safety. The service said it was reassessing its aircraft operations near the airport and that it gave priority to the safety of the public and military personnel. The current restrictions allow certain critical flights.

Duffy also suggested certain military missions can be done at a different time of night. The Jan. 29 crash occurred around 9 p.m. Eastern time.

Defense officials have assumed that the helicopter routes would be closed in the coming months amid several ongoing investigations, but have privately said that the routes should be reopened. Adjustments under consideration if routes are reopened include limiting hours for training and test missions.

Reagan\x92s convenient location, a few miles from Capitol Hill, has made the nearly 84-year-old airport a favorite among politicians, business executives and tourists.

Space is tight at the airport. Reagan\x92s longest runway, Runway 1, is the nation\x92s busiest, airport officials have said, and it has two smaller runways. Routes into and out of the airport are constrained by no-fly zones around sensitive government buildings.

The FAA has said it is also reviewing airspace around airports aside from Reagan that also have high volumes of helicopter and airplane traffic.

Discussions about Reagan airport have also focused on a small runway known as Runway 33, people familiar with the matter said. The American Airlines regional jet was attempting to land there when it collided with the Army helicopter. Some government and industry aviation officials believe that there isn\x92t a problem with planes using the runway if helicopters aren\x92t near the traffic lanes.

Warning signs existed for years about risks facing commercial passengers, with planes sharing the skies closely with helicopters zipping up and down the Potomac River.

The path the American Airlines regional jet took toward Runway 33 required it to turn toward the right and then bank left to line up for its landing. That route crosses over a lane for helicopters at a relatively low altitude.

There have been at least 35 events involving conflicts between helicopters and flights into and out of the airport that have been flagged since the 1980s, according to a Wall Street Journal analysis of anonymous reports to a system overseen by the National Aeronautics and Space Administration.

In one instance, in July 2018, a helicopter and small plane came within roughly 580 feet of each other while the plane was approaching Runway 33. The helicopter pilot had to maneuver to avoid the plane and questioned the air-traffic controller about it after, according to an internal FAA report on the incident viewed by the Journal.

Neither aircraft had received traffic advisories or safety alerts, the report said. The helicopter pilot reported the incident as a near midair collision. \x93I\x92m sorry for the confusion,\x94 the controller told the helicopter pilot, according to an audio recording of air-traffic-control communications following the incident.

Nearly two weeks after the deadly crash over the Potomac, the FAA has lifted some of the constraints put on Reagan airport in the wake of the accident.

The FAA on Tuesday boosted the airport\x92s arrival rate from 26 to 28 aircraft an hour, after temporarily reducing it to ease the strain on controllers still dealing with the aftermath of the crash, according to an email viewed by the Journal and earlier reported by other news outlets. The current rate is still lower than the airport\x92s typical maximum of 32 arrivals an hour.

Reagan\x92s two smaller runways, which had been closed due to search and recovery efforts, have been reopened.
________

From the transcript,
8:43:48, pilot stated the Black Hawk was at 300 feet, the instructor pilot stated 400 feet, there is no discussion of the discrepancy; the investigation will probe this.

True, this is some minutes before the collision. But it is a discrepancy of 100 feet as referred to in the prior post.

Easy Street:
"However, as there was no vertical separation built into this procedure, all of this is at best a distraction. The more important questions are why procedural barriers were not in place to stop the route being used during landings on runway 33, and whether visual separation at night is an adequate barrier to collision when airliners and their human cargo are involved."

Aircraft accidents bring lawsuits - like it or not.

I'm not a member now, nor have I been a member, of the part of the profession which specializes in suing usually anybody plausible as a defendant. That doesn't mean, as an attorney first and SLF second, I don't see big problems looming ahead. (A prior post on legal factors was junked by the mods, but that was then, this is. . . .)

The FAA and the U.S. Army are privileged with sovereign immunity, as a general rule. A federal statute - the Federal Tort Claims Act - enacted a waiver of sovereign immunity BUT with an important exception. If the allegedly negligent act (or omission) was taken (or failed to be taken) as part of a "discretionary function", immunity still exists. The basic explanation is that discretionary functions involve policy judgments which, in the view of Congress, cannot be "second-guessed" in lawsuits over alleged federal agency negligence. The other half of the equation is that immunity is waived for "ministerial" actions, sort of (to over-simplify) plug-and-chug activities.

Is the construction and operation of the airspace around DCA a matter of policy judgment? I can almost hear the lawyers planning to file suit arguing that airspace rules which make simple, obvious sense are not derived from policy judgments. I can almost hear them issuing subpoenas (through the necessary international process) of Network Manager or MUAC senior managers to gain testimony that in European airspace, as others have observed about Heathrow, the airspace rules are more like "plug-and-chug" than the sometimes esoteric, and usually vague and/or ambiguous, factors which inform the choices made in - offensive phrase coming - "the policy world."

And will our fine feathered legal eagles sue American too, just to go after the deep pocket, and try to force the airline to take a position on the federal immunity questions?

It's too bad so much attention is focused on the dumb shows and noise currently meant to entertain the grandstands (if you get my meaning). There should be a way to compensate the families of the people who perished in this awful, tragic, and ultimately senseless midair collision. Is the United States civil justice system really going back to 1960 and pretending that what we are dealing with is the December 16 1960 DC-8 - L-1049 Super Constellation midair?

As another poster way, way upthread said, I feel rage.

The more posts I've read on this thread, the more I'm anticipating that court actions seeking compensation for the families of the people killed in this accident will encounter very tough barriers.

This is an excerpt from a website of an actually well-known, very accomplished, and respected group of lawyers who specialize in (among other things) aviation matters. I'm not using their name and I don't have any approval, express or implied, to use information from their website - but if justice is to be sought for the victims' families, public discussion is - or should be - encouraged.

"A discretionary function is an action of a governmental nature exercised by a federal employee, but in order for that action to be considered a discretionary function, it must pass a two-part test:

There must be an element of judgment or choice. That is, if a federal statute or regulation prescribes a course of action for an employee to follow, there is no discretion.
That judgment or choice must be susceptible to policy analysis.
The Federal Tort Claims Act contains a discretionary function exception that says the U.S. cannot be held liable for any employee\x92s failure to exercise or perform a discretionary duty.

Within the legal field of aviation accidents, discretionary duties for which the U.S. is not liable include the following:

Aircraft \x93spot check\x94 certifications
Weather forecasting
Failure to install equipment
The FAA\x92s design of flight procedures
The types of actions that are considered not discretionary, and therefore, open the U.S. government to litigation are:

The failure to issue air traffic control manual warnings
If air traffic control fails to warn of weather dangers
The failure to maintain equipment
Relaying incorrect instructions to pilots."
END OF EXCERPT [not intended as legal advice here or on its original internet page]

So to return to ATC Watcher's point...... the more posts I read about this midair collision (plus other information such as NTSB briefings) the more I am anticipating that it will require an act of Congress to provide for compensation for the families of the victims. Isn't it the obvious fact that convenience for people who work in Washington and travel "back home" generally speaking on weekends and when Congress isn't convened, is a prime and central reason for the way DCA airspace has been constructed and managed? Is it really going to be the case that because the lawsuits will - in all likelihood - fail to overcome the "discretionary function" exception, that the 67 families will be without a remedy? Is that how it works, then?

In case anyone thinks my sense of being horrified at this accident is clouding reason or logic, consider this - the book Collision Course discusses the PATCO union's genesis, the strike, and so on. PATCO's earliest stirrings resulted in large part from the 1960 midair over New York. Is the United States aviation sector willing to accept an outcome of this accident that in effect travels back over six decades? The point is, given the long-term shortage of ATCOs in this country . . . I don't think a court is capable of ruling that the situation, allowed and in fact enabled by Congress and successive White House presidential administrations, is subject to "negligence" analysis in the currently applicable legal sense. All this being said, this is how I arrive at thinking that in the interests of justice, some other means of providing for the loved ones of 67 souls who were on board needs to be determined and implemented.

An interesting point. But, consider first how frequently on this forum posters have observed that the FAA (and Congress) have favored higher capacity of operations over stricter safety-related operational procedures. It has been noted on many threads about many incidents. So - while admitting there could be legal reasoning that has eldued me - the presence of policy judgments in the FAA situation looks pretty strong, and very likely preclusive.

But, you're asserting that the Army can be sued - it's covered by the Federal Tort Claims Act, as far as I know. Which is to say it will be claimed that the Army as an organization, and perhaps the pilots, were negligent. There isn't a separate exception to the FTCA's immunity waiver for the military in general although there is an exception for combatant activities in time of war (not applicable, right?).

But not so fast. The operation of training and/or check rides for VIP transport- especially as related to continuity of government operations - carries lots of policy judgments. It could be a more intense legal fight than scoring the FAA for favoring traffic capacity over stricter safety rules. For one thing, the continuity of government stuff probably is largely meant to be kept out of the public record, making litigation involving it more challenging.

I'm fairly certain that, because Annex 13 and all else pursuant to the Chicago Convention of 1944 applies to international civil aviation, the statutory as well as practical jurisdiction and responsibility of NTSB are matters dealt with by federal statute and regulations. This is not to say that the Board will or should ignore Annex 13 or declare it irrelevant - but it is to say -
first, the NTSB's authorization and processes are set by federal law and not by Annex 13 (although as the excerpt you quoted also says, Ann. 13 does apply where the case is international civil av.); and
second, the DCA midair is not within international civil aviation (sorry to find it necessary to state the obvious).

I cannot cite anything specific to support it but I'm strongly inclined to think Chair Homendy, at this point in her public service career, will insist on a report and supporting analysis that leaves, if you will, political niceties on the bottom of the Potomac shy of the Rny 3-3 threshold -- where they belong. We will see, time will tell.

Even a non-pilot, non-engineer (and worse, an SLF/attorney) is able to understand the difficulties created by relying on visual separation at night, and more specifically, relying on it given the facts of runways in use on the night of the accident (i.e., that the clearance to the helicopter did not make it clear that the traffic advisory was meant to refer to an aircraft "circling" for approach and landing to Runway 33).

Reading this thread since the night of the accident, many have noted the "wrong-thinking" (for lack of a better term) underpinning the way traffic was managed by FAA and ATC.

I'm not enthused about the litigation that almost certainly will be intense once it commences. But reading the thread I've started to wonder.....

What would a chronological reconstruction of each incremental decision by FAA about the operation of DCA look like, a chronology that would (of course) include each Congressional enactment requiring or allowing further intensity of operations? The airport did not go from a nominal operational environment, with typically safe procedures and airspace usage rules very similar to or the same as any other major urban airport in the country, to the situation which obtained on January 29, overnight - or so it would seem.

(Yes, reconstructing the facts to build such a chronology would involve quite a lot of discovery activities in the presumably forthcoming lawsuits, but I'm not veering off into any further comment about why that would matter or which party or parties it would help or hurt..... other than to say, very often, cases are won and lost in discovery.)

Some years ago, on a trip to Capitol Hill hoping to find gainful employment on a Congressional staff somewhere, on the return flight from what then was Washington National, the aircraft's cockpit door was open as the boarding process was being completed (it was 1987). I recall being seated close enough to the flight deck - leaning a little into the aisle (a Midway Airlines DC-9 iirc) - to be able to see the pilot in the LHS and part of the D.C. skyline through the cockpit's front windows. Maybe that is why my mind somehow can't quite comprehend the recollections from kidhood of reading about the midair collision over New York City which is featured prominently in the book Collision Course , together with the events of the night of January 29.

Added: Wall Street Journal, March 6: "Air-Traffic Staff Rules Tightened After Crash." Also reports previous "close call" incident. Highly recommended reading (and I didn't see anything to contradict the above post, WR 6-3).

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

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

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

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

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

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

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

The NTSB issued a 10-page report, and the link to said report is contained in the Board's recent press release.
https://www.ntsb.gov/news/press-rele...R20250311.aspx

Shout-out to Blancolirio for including some review and comments regarding the report; as far as I recall the issuance of a separate report was not mentioned in the recent update by the Board in connection with its preliminary accident report.

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

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

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

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

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

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

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

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

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

Will likely not prevail.
And imho it shouldn't even be difficult for a federal District Court judge to make such a ruling.

Too cynical for my view.
The tug-of-war about Article II Executive authority doesn't determine the merits of legal and factual lawsuits arising from this accident. That power struggle at the constitutional level may not even be relevant to how the lawsuits over this accident will proceed and what results they'll produce.

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

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

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

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

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

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

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

Whether the Challenged Conduct Is Discretionary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

H 'n' H:
"[L]ooking further back, and in a perfect world, you could assess ATC SOPs against the buildup in traffic over the years and see how that's affected things over time. Was it the case of 'a death by a 1000 cuts' which WR 3-6 cited? Sadly, I suspect we'd need a crystal ball to study that. But retired Controllers could give a fairly good insight." (emphasis added)

Probably five dozen lawyers have added, or will add, to their work-in-progress plans for their fact investigation and discovery activities locating, interviewing, and taking the depositions of retired ATCOs - with pertinent knowledge and appropriate credibility and experience, of course.

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

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

The discretion involved in the defense against availability of tort claims would not focus on acts or omissions of the Army crew. It would focus on the discretion which went into decisions about construction of the airspace, rules for its usage, and how these changed over time, and this defense could be developed on behalf of both the FAA and Army. Presumably the Army, not just FAA, had significant involvement in airspace management decisions, such as where the helicopter routes were drawn. And how the helicopter aviators are trained certainly involves discretionary judgments.

Where I continue to view the legal playing field differently is that essentially all the elements of the authorities responsible for construction and management of the airspace in question set it up so this accident could occur even if - in this case - the Army pilots followed every rule and procedure they had been trained to follow. To make the point with some absurdity, the way the Army crew was negligent was in refusing to fly the helicopter routes around DCA absent significant modifications in procedures and rules. What other meaning can reasonable minds give to the by-now cliche: it was an accident waiting to happen? Within the airspace as constructed and operated by both the Army and FAA (and any other users who, at an agency and/or interagency level, participated in management of DCA airspace), the helicopter crew could be said to have acted non-negligently - it was the airspace management system which was negligently designed and operated. As another poster noted, there was normalization of complacency.

As I've noted above, I've got no claim for expertise about the DCA airspace (or any airspace) but that does not stop me from asserting that it is hard to understand why you do not see deep liability exposure for FAA in this matter (prior to successful invocation of the discretionary function exception, of course).

I had to delve into Feres in some depth for my student law review article many years ago .... though that's not the only reason I hadn't noted its relevance and applicability. In any event, I recall it being pretty largely without exceptions.... probably you're correct about that aspect.

The trial lawyers I have met would not easily give up on devising a way to get this case in front of a jury and litigating all issues, including punitive damages. Perhaps a claim against the manufacturer and designer of the NVGs? . . . but then we'll see more posts about legal matters, especially the "government contractor defense" and the Boyle decision by the Supreme Court in 1988 (with some oversimplification, if the defense contractor follows reasonably precise specifications for the design of the military equipemt, it is protected against tort claims by, in effect, an extension of the government's immunity).

Conceding liability but without allowance for punitive damages or their equivalent will be tough sledding. Fatalities in this country in airline accidents had, thankfully, become rare. This lends brutal poignancy to descriptions of the lives and imminent futures of passengers on the CRJ. And despite the lingering in American law of the Feres Doctrine, of the Army crew too. Perhaps some fund would be established by the sages and scholars of the United States Congress and an eminence grise (such as the inimitable Mr. K. Feinberg) would hear claims and assign value.