Judge Rejects Throwing out DPA with Boeing

By Amber Pavucsko, Staff Writer

Photo curtesy of Pixabay.com 

In February 2023, a judge in Texas denied a family’s request to throw out a deal made between Boeing and the Department of Justice (DOJ) to avoid prosecution.[1] The deal was made in response to two Boeing 737-MAX flights that crashed, killing a total of 346 people. Investigators determined that the planes crashed due to a variety of reasons, including “a lack of transparency on the part of Boeing’s management.”[2] Boeing downplayed the significance of its automated flight control system to regulators, airlines, and pilots which led to disastrous results. Boeing admitted to misleading regulators about the safety of the 737 MAX planes.[3] However, part of that admittance included the DOJ entering into a deferred prosecution agreement (DPA) with Boeing.[4]

Under the agreement, Boeing agreed to pay a criminal monetary amount of $2.5 billion.[5] Part of the money went to the victims’ families and affected airlines who purchased the plane.[6] The DOJ found that the agreement addressed Boeing’s wrongdoings and held the company accountable for its criminal conduct.[7] The agreement also included implementing a variety of safety committees, as well as adopting new policies and procedures.[8] If Boeing adheres to the agreement, the criminal charges will be dropped and the DOJ will not prosecute.[9]

However, others, including the victims’ families, do not feel the DPA adequately addressed Boeing’s misdeeds.[10] The families charge that they should have been involved in the discussion process as required under the Crime Victims’ Rights Act (CVRA).[11] Moreover, the families argue that they were not provided with timely notice nor were they treated “with fairness” under the CVRA.[12]

In October 2022, the U.S. district court in northern district of Texas held that the families were “crime victims” within the meaning of the CVRA.[13] The court reserved remedies for a later date and in February 2023 ruled that the DPA was still in effect and would not reject the agreement.[14] Ultimately, the court found that it did not have statutory authority to substantively supervise the DPA.[15] The Speedy Trial Act allows the prosecution to enter into a deferral agreement with a defendant “with the approval of the court[.]”[16] The victim’s families contend that this approval includes reviewing the written agreement and approving or disapproving its written terms.[17]

The court disagreed and found that this argument was not persuasive, especially in light of separation of power concerns for interfering in a congressionally authorized Executive’s DPA.[18] The court could not find authority granting it the power to withhold approval of the DPA because it disagreed with some of the agreement’s substantive provisions.[19] The court also did not find that it had any inherent authority because the government did not enter into the DPA in bad faith.[20]

Therefore, although the court agrees that the government did violate the CVRA, there is no available remedy to withhold approval of the DPA because the court lacks the authority to do so and the government acted in good faith.[21]The court stated that “Congress—not the courts—is the appropriate venue to redress the inadequacies of this statutory enactment.”[22] The victim’s families plan to appeal the decision.[23]

[1] Roxanna Asgarian, Judge Rejects Bid by Families of Plane Crash Victims to Throw Out Deal Letting Boeing Avoid Prosecution, The Texas Tribune, (Feb. 12, 2023), https://www.texastribune.org/2023/02/13/boeing-prosecution-737-crashes/ [hereinafter Judge Rejects].

[2] House Comm. on Transp. and Infrastructure, The Design, Development & Certification Of The Boeing 737 Max, 1, 5-6 (Sept. 15, 2020), https://transportation.house.gov/imo/media/doc/2020.09.15%20FINAL%20737%20MAX%20Report%20for%20Public%20Release.pdf.

[3] Boeing Charged with 737 Max Fraud Conspiracy and Agrees to Pay over $2.5 Billion, Dept. of Justice, (Jan. 7, 2021), https://www.justice.gov/opa/pr/boeing-charged-737-max-fraud-conspiracy-and-agrees-pay-over-25-billion.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Judge Rejectssupra note 1.

[10]         Michael Laris, Judge Rules DOJ Violated Rights Of Boeing Max Victims In Prosecution Deal, Washington Post(Oct. 21, 2022), https://www.washingtonpost.com/transportation/2022/10/21/boeing-max-justice-department/

[11] U.S. v. The Boeing Company, CRIMINAL ACTION 4:21-cr-5-O (N.D. Tex. Oct. 21, 2022), 5-6, https://docs-cdn-prod.news-engineering.aws.wapo.pub/publish_document/c5b3a8a4-db15-4a7e-84c8-03bae6cca2dd/published/c5b3a8a4-db15-4a7e-84c8-03bae6cca2dd.pdf [hereinafter First CVRA Case].

[12] First CVRA Case, supra note 9, at 8.

[13] U.S. v. The Boeing Company, CRIMINAL ACTION 4:21-cr-5-O (N.D. Tex. Feb. 09, 2023), 3, https://static.texastribune.org/media/files/bd1fa9ae7f14c5a3b7e4369d2f3b2d82/Boeing%20crash%20case%20opinion.pdf [hereinafter Second CVRA Case].

[14] Id. at 3.

[15] Id. at 12.

[16] Id. at 12-13.

[17] Id. at 13.

[18] See id. at 13-14.

[19] Id. at 14-15.

[20] See id. at 18.

[21] See id. at 13-18.

[22] Id. at 29.

[23] Judge Rejectssupra note 1.

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