DC Aviation Disaster Raises Important Legal Questions

Last month, the United States experienced the worst aviation disaster in nearly 25 years. On January 29th, an American Airlines flight descending into Reagan International Airport collided with an Army Blackhawk helicopter. Both aircraft exploded and plummeted into the icy Potomac River. There were no survivors.

Legal questions usually follow any aviation tragedy, especially high profile ones. This case is no different. The National Transportation Safety Board will release its preliminary findings in 30 days, but the full report might not be released for another two years.

Federal Tort Claims Act

The Federal Tort Claims Act applies to civil actions for damages against the United States or any of its agencies. As a general rule, the act waives the government’s sovereign immunity unless an exception applies. 28 U.S.C §1346; 2671-2680. The Federal Tort Claims Act was passed in 1946, largely in response to another aviation disaster. On July 28, 1945, a B-25 Army Air Force bomber crashed into the Empire State Building, killing 14 people. At the time, civil cases against the federal government were barred by the doctrine of sovereign immunity. Congress changed this by passing the Federal Tort Claims Act in 1946.

Relatives of those who were killed in the D.C. crash might pursue a wrongful death case against the United States Army. If the investigation determines that the helicopter pilot was negligent in the operation of the aircraft and this negligence was a substantial factor in causing the collision, a claim will need to be presented to the Army using form SF95, the standard form used when filing a Federal Tort Claims Act claim. Claimants have two years from the date of the incident to file the claim with the appropriate federal agency. If the agency denies the claim, the claimant then has six months to file a lawsuit in federal court. 28 U.S.C. § 2401.

If the investigation determines that the crash was caused by a mistake made by air traffic controllers, the same rules would apply. A Federal Tort Claims Act claim would be presented to the Federal Aviation Administration. Cases against the FAA are difficult. As Los Angeles attorney and Marine Corps veteran Tim Loranger recently told me, flight regulations place a substantial amount of the responsibility for air safety on the pilots flying the aircraft, not the controllers in the tower.

Feres Doctrine

An interesting and confusing byproduct of the Federal Tort Claims Act is the Feres Doctrine. It is named for the case that decided it, Feres v. United States, 340 US 135. The case stands for the rule that members of the armed forces cannot sue the government for injuries they suffered while on duty. Courts have been grappling with Feres for the past 75 years. Three words in the opinion, “incident to service”, are responsible for a never- ending body of law in every federal jurisdiction throughout the country.

Applied to this case, it means that relatives of the four soldiers killed on the Army helicopter will be barred from suing the Army for the death of their loved ones. The helicopter was flying during an active-duty training mission, removing all doubt that this flight was “incident to service.” An interesting question is whether relatives of those who were riding on the helicopter can sue the FAA, if, as above, it is determined that the crash was caused by air traffic controller negligence. The answer is probably not.

The United States Supreme Court ruled on a case that dealt with this issue in United States v. Johnson, 481 U.S. 681 (1987). In Johnson, the widow of a Coast Guard helicopter pilot sued the FAA after her husband was killed in a crash that occurred during a rescue mission. She argued that the civilian air traffic controller’s negligent instructions caused the crash. The Supreme Court ruled that since the Coast Guard pilot was on duty, any claims against the Coast Guard would be barred by Feres. The Court extended Feres’ protection to the civilian agency overseeing the flight. The Ninth Circuit came to the same conclusion in a few cases that predated Johnson, including Uptegrove v. United States, 600 F.2d 1248 (1979).

Conclusion

Sixty-seven people were aboard the American Airlines flight that went down last week. Three members of our profession tragically lost their lives. Kia Duggins was a civil rights lawyer about to begin teaching law at Howard University. Sarah Lee Best and Elizabeth Keys were associates at a Washington D.C. litigation boutique. We all want answers to what caused this tragedy. It will take months, if not years for those answers to come. In the meantime, we will soon begin to see legal actions arising out of this case. Whether it’s wrongful death or negligence claims against American Airlines, or federal actions against the United States government brought under the Federal Tort Claims Act, we will be reading about this case for the foreseeable future. May the victims rest in peace.

[A longer version of this article ran in the February 5, 2025 Daily Journal]

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