AA5342 Down DCA

[Musician]

Originally Posted by Easy Street

Besides, "plus zero" is an impossible tolerance to achieve when maintaining an altitude or height. The only way of flying that route not above 200 feet on a "IFR-esque" procedural basis with an achievable tolerance would be to fly 150 feet plus or minus 50 feet, which would demand total focus on height keeping via radalt (it would be hopelessly unsafe to attempt to fly that low on barometric instruments).

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

[ignorantAndroid]

Originally Posted by ATC Watcher

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

Bit of historical background : when designing this route decades ago they must have followed basic ICAO/ FAA principles . separation IFR-VFR is 500 feet . allowed deviation then was 100 ft either way , so even if one a/c is 100ft above and the other 100ft too low , there would still be 300 ft separation preventing a collision ,

Agreed.

Originally Posted by ATC Watcher

When that was introduced decades ago I bet you a bottle of (real) Champagne that the procedure was use of that route 4 was restricted during RWY 33 arrivals and RWY 15 departures. It was one or the other but not both simultaneously .
How , when and why , over time , did it degraded to the point that this restriction could be disregarded would be interested to investigate and unveil .

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

[ignorantAndroid]

Originally Posted by Musician

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

(b) Over congested areas – Over any congested area of a city, town, or settlement, or over any open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
(c) Over other than congested areas – An altitude of 500 feet above the surface except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters – Helicopters may be operated at less than the minimums prescribed In paragraph (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the Administrator.

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

[Musician]

Originally Posted by ignorantAndroid

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

Yes.
I know it's legal.
But I'm reading (c) as the "standard" level of safety, and (d) as the exception.

[Capn Bloggs]

Originally Posted by WR63

But point 4 of the summary:
"Directs the Army OIG to initiate a safety coordination audit. The Army Inspector General has declined to voluntarily review the Army's aviation safety practices. The Inspector General would conduct an independent review of the Army's approach to safety."

Why does this not make real sense?

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

[WillowRun 6-3]

Originally Posted by ATC Watcher

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

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

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

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

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

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

[ATC Watcher]

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 :

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

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 .

[SINGAPURCANAC]

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.

​​​​​​​

[ATC Watcher]

From the Ops group :

A US Senate Panel is considering a broad aviation safety package today, Oct 21, that addresses concerns raised by the collision over the Potomac River back in Jan 2025. This includes a potential mandate for all aircraft already required to have ADS-B Out to also be equipped with ADS-B In by 2031. It also aims to end most military ADS-B exemptions. If the process runs smoothly, this may become law in a matter of months.

The key words are " potential mandate " and " by 2031 , so as we say in French :this is more to "amuse the gallery "( i.e. please the onlookers , appearing to do something ) than to address a safety issue .

[WillowRun 6-3]

Originally Posted by ATC Watcher

[ Thanks [b]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 .

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?

[Lonewolf_50]

Originally Posted by ignorantAndroid

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

Probably at Hains Point.

Originally Posted by Easy Street

==snip the rest of your detailed reply==
Why do I think the IFR ACS might be relevant?

Thank you for your reply. I will offer the view that you are overthinking this.

[ignorantAndroid]

Originally Posted by ATC Watcher

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 aircraft at 3 or 400 feet ?, resulting in a 100-200ft separation ?

None. That would obviously be unsafe, so the helicopter would be expected to use lateral separation. (e.g. "Pass behind the CRJ.")

The 200 ft altitude restriction seems to have given some the impression that helicopters were routinely passing directly below the approach traffic, but that's not the case. And even if it was, it wouldn't really be relevant to this accident. The Blackhawk pilots weren't trying to duck underneath the plane, they never even saw it.

[Easy Street]

Originally Posted by ignorantAndroid

The 200 ft altitude restriction seems to have given some the impression that helicopters were routinely passing directly below the approach traffic, but that's not the case. And even if it was, it wouldn't really be relevant to this accident. The Blackhawk pilots weren't trying to duck underneath the plane, they never even saw it.

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

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

[ATC Watcher]

Originally Posted by ignorantAndroid

None. That would obviously be unsafe, so the helicopter would be expected to use lateral separation. (e.g. "Pass behind the CRJ.")
.

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 “pass behind” , 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 “ Safe” .

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

[ignorantAndroid]

Originally Posted by ATC Watcher

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.

Visual Flight Rules aren't a local procedure.

Originally Posted by ATC Watcher

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 “pass behind” , 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..

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.

Originally Posted by ATC Watcher

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

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!")

[layman54]

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

It wasn't the sole cause but it was one of the holes in the cheese. If the helicopter had been where it was supposed to be (further east and lower) the accident would not have occurred.

The purpose of the trial is to determine legal liability. It is the purpose of the NTSB investigation to recommend ways to improve safety.

[layman54]

Originally Posted by WillowRun 6-3

...

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

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

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

[layman54]

"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. ..."

There are two possible theories of government liability. One is that the accident was the result of negligence by the low level people, the helicopter crew and possibly some ATC people. The other is that it was a system failure in which higher level people placed a greater priority on keeping traffic moving than on keeping things safe.

The second theory has a serious flaw from a legal point of view. If it is true the government is likely immune from paying damages because of the discretionary function exception. So why would the plaintiff's lawyers waste time and money on trying to establish a theory under which the government is likely immune when there is a perfectly viable alternative theory with no such difficulty.

[ATC Watcher]

Originally Posted by ignorantAndroid

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.
" )

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..

But first you'd have to know the plane is there.

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

I But I don't understand how the FAA would be responsible. Visual separation is initiated by the pilot, when they say "traffic in sight.

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 .

[WillowRun 6-3]

Originally Posted by layman54

"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. ..."

There are two possible theories of government liability. One is that the accident was the result of negligence by the low level people, the helicopter crew and possibly some ATC people. The other is that it was a system failure in which higher level people placed a greater priority on keeping traffic moving than on keeping things safe.

The second theory has a serious flaw from a legal point of view. If it is true the government is likely immune from paying damages because of the discretionary function exception. So why would the plaintiff's lawyers waste time and money on trying to establish a theory under which the government is likely immune when there is a perfectly viable alternative theory with no such difficulty.

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]).