Originally Posted by
layman54
As long as you are in law prof mode one immediate issue appears to be the fact that the complaint asks for a jury trial but the FTCA does not provide for jury trials. So I guess the case may have to be split in two. But another possibility appears to be the case may proceed with a jury trial but the jury's decision will only be advisory as regards the government defendants. Speaking of the government defendants is the government obligated to provide a consistent defense or could we see one government lawyer representing the FAA blaming everything on the Army and another government lawyer representing the Army blaming everything on the FAA?
I seriously doubt that this case would be split into two trials. You are (of course) correct that the FTCA does not provide for jury trials, but there are many examples of advisory juries being used by federal district court judges (as you also suggest) in FTCA matters. My inclination is to think that district court judges have little apparent reluctance to empanel advisory juries in FTCA matters because negligence claims would - other things being equal - be precisely among the archetypes of claims for which juries serve as the finders of fact.
The practice of using an advisory jury in FTCA matters is, nonetheless, not without its critics. (See, e.g., "Advisory Juries and Their Use and Misuse in FTCA Cases", 2003 BYU L. Rev. 185) (2003)). Perhaps interestingly, the cited law journal article opens with reference to the use of an advisory jury in a trial arising from the incident in Waco, Texas involving federal law enforcement.
But in the current matter, let it be recalled that there are non-federal defendants. So there will be a jury serving as fact-finder already, and it would seem an even less difficult or concerning step for the U.S. District Court judge to assign the jury for the "ordinary civil case" the additional advisory role for the FTCA claims. WIthout claiming any knowledge at the level of aviator or related aviation or engineering role, the overall factual development needed to present the claims against the federal defendants on one hand, and the civil defendants on the other, are so closely related that the advisory role also makes sense from that perspective.
But are there federal defendants, plural? The Complaint names as defendant the United States of America (and includes the nice touch of giving the country a defined term identifier, i.e., "USA" - Complaint, para. 8). So on two levels, I would not anticipate* divergent let alone clashing attorneys representing, on one side FAA, the other the Army. A litigant in federal district court, to the best of my knowledge, has one lead counsel, and I'm unfamiliar with any practice of splitting the defendant. It might have a nice ring to it; I can almost phrase a law journal article built upon it..... "Splitting the Defendant: the Perils of Beat-Generation Hipster Slang in Federal Practice"...... but I digress.
Secondly, I have serious doubts that the "federal powers that be" will fail to coalesce around the essential facts and defense arguments. (There is a sub-sub-agency within the Department of [formerly Defense] War known as the Policy Board for Federal Aviation. I have no experience working with the Board but I have worked information about it - or tried to do so - into academic work. My understanding, provisional (or provincial) as it may be, is that a conflict between U.S. Army PAT helicopter training requirements, and associated practices and habits of the units involved on one hand, and proper structure and operation of the DCA airspace on the other, would be precisely the kind of matter to be brought before the worthies of the PBFA - but I don't "know that for a fact".) In any event, the FAA and the Army, with the NTSB about to levy some pretty heavy criticisms against them, are very unlikely I think to confront each other. In court, anyway.
* How exactly the USA will deal with representation of the FAA on one hand, and its statutory parent Department of Transportation, and also of the U.S. Army, is of course a matter to be considered, evaluated, and decided upon by the Justice Department. There have been sufficient divergences from what conventional wisdom would say DoJ would do (or not do) in particular situations in recent weeks such that I think it wisest not to venture any comment about the overtly political nature of the decisions which will have to be made. Besides, in my career I have not had the occasion to represent the United States in any legal matter, so.