Should the Boeing deferred prosecution for 737 MAX 8 fatal crashes be rescinded?

On Friday, 05 January 2024, a Boeing 737 MAX 9 blew out a door plug on an Alaska flight shortly after take off. It may have blown up a deferred prosecution as well.

The next day, 06 January 2024, was the three-year anniversary of an illegally negotiated deferred criminal prosecution between the Trump Department of Justice and Boeing. Boeing admitted that it had “deceived” the Federal Aviation Administration (FAA) regarding development of the 737 MAX 8.

That agreement expired three years after filing (07 January 2021), assuming Boeing met agreement conditions.

The trigger for DOJ action: two Boeing 737 MAX 8 flights had crashed shortly after take-off, killing all 346 people aboard (2018 and 2019). Extensive research uncovered a software-hardware work-around to an engineering design problem related to the weight and placement of the engines on the redesigned 737.

The software-hardware system responsible for those crashes “was hidden from the view of both Boeing’s own head of safety and regulators at the [FAA] (emphasis added).” It had been deemed potentially “catastrophic” in early flight simulations. Boeing also failed to document details about the new system or train pilots about its use.

Working covertly with Trump’s lameduck Justice Department (Deputy Attorney General Jeff Rosen was acting attorney general and the election certified on 06 January 2021), Boeing negotiated a “criminal” fine of $2,500,000. That’s 0.2% of 2018’s gross revenue. Helluva penalty, right?

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Notice that all three 737 MAX in-flight incidents happened within minutes of departure. The 737 MAX timeline does not inspire confidence.

May 2017: The 737 MAX 8 went into service.
29 October 2018: The first 737 MAX 8 fatal crash in Indonesia, 13 minutes after take-off.
13 March 2019: The second 737 MAX 8 fatal crash in Ethiopia 6 minutes after take-off. The FAA grounded the plane; other governments had done so already.
17 January 2020: The Wall Street Journal reported a software problem that prevented “flight-control computers from powering up as required prior to flight.”
06 February 2020: Bloomberg reported that a warning light for the stabilizer trim system failed during flight testing.
22 February 2020: “Boeing Co has found debris in the fuel tanks of dozens of undelivered 737 MAX jets amid ongoing inspections,” per Reuters.
07 April 2020: Reuters reported that the FAA had directed Boeing to correct two additional issues with the software that runs the automated flight control system.
24 June 2020: Regulators in Europe and Canada “demanded” that Boeing fix “other issues … related to the sensor problem” that led to the fatal crashes. The FAA agreed. Boeing proposed changes in the “flight manual and pilot training” followed by “permanent fixes” once the plane was recertified to fly.
19 November 2020: The FAA cleared the plan for service. Not all countries concurred at this time.
21 December 2020: Congress gave the FAA new oversight authority over aircraft manufacturers as part of HR 133, an ominubs appropriations bill. The new law requires disclosure of critical safety information and provides new whistleblower protections. The new legislation also “requires [the FAA conduct] an independent review of Boeing’s safety culture.”
07 January 2021: The Department of Justice announced Boeing had agreed to a three-year deferred prosecution “in connection with a criminal information [charging] the company with one count of conspiracy to defraud the United States.”
28 April 2021: Boeing confirmed to Reutuers that it had halted 737 MAX deliveries due to electrical problems. The FAA “issued a new airworthiness directive [today] requiring a fix before the jets resume flight.”
22 October 2022: The FAA advised Boeing that “key documents” the company provided as part of the certification review of the 737 MAX 7 were “incomplete.”
24 March 2023: Boeing mechanics “[improperly torqued] engine anti-ice (EAI) exhaust ducts in Boeing 737 Max jets… Inadequately torqued fasteners can loosen over time due to engine vibration, eventually causing the fastener to drop into the inlet inner barrel.”
08 August 2023: Running the engine anti-ice system for more than 5 minutes “can cause overheating of the engine inlet inner barrel beyond the material design limit, resulting in failure of the engine inlet inner barrel and severe engine inlet cowl damage.” This problem has not been fixed. Pilots must remember to turn off the system; there is no reminder. Should the engine get too hot, “parts of the housing could break away and strike the plane, possibly breaking windows and causing rapid decompression.” The problem was discovered on a test flight.
24 August 2023: Boeing reported “improperly drilled holes on the aft pressure bulkhead made using an automated drill.” The bulkhead is produced at Wichita supplier Spirit AeroSystems; it had been a Boeing division until management sold the assets in 2005. Spirit built the fuselage and door plug for the Alaska 737 MAX 9.
04 December 2023: Boeing asked the FAA to exempt the 737 MAX 7 from some certification requirements, including the engine de-icing issue. This request made general news on the morning 05 January 2024.
28 December 2023: A MAX 9 rudder bolt-and-nut problem identified. More below.
05 January 2024: The MAX 9 door plug blow out in Portland, Oregon, 10 minutes after take-off. Alaska employees did not know that the door to the cockpit was supposed to blow upon depressurization. Boeing had not included information in training documentation.

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Negotiating a deferred prosecution in secret is illegal. The Crime Victims’ Rights Act (CVRA) requires the Department of Justice to “to extend to victims the ‘reasonable right to confer’ with prosecutors in a case.” Nevertheless, that is what the Trump DOJ did.

Here, the [Department of Justice] violated all these rights by making no effort to confer with hundreds of family members who had loved ones taken from them in the two Boeing crashes. Even worse, the Government misled some of the victims’ families by falsely telling them that no criminal investigation into Boeing even existed. Whatever else the Government may do under the CVRA, it cannot deceive victims.

Paul Cassell, the Ronald N. Boyce Presidential Professor of Criminal Law at S.J. Quinney College of Law at the University of Utah, has been spearheading the challenge to the DOJ deferment on behalf of 15 families “who lost loved ones in the Boeing 737 MAX crashes.”

It is unclear how this deferred prosecution agreement could have incorporated any directive from HR 133; it was signed into law on 27 December 2020. The agreement, 11 days later.

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The deferred prosecution agreement states that Boeing will report to the FAA “at no less than three-month intervals” about “remediation, implementation, and testing of its compliance program and internal controls, policies, and procedures” related to its “enhanced self-reporting obligations.”

“Compliance” should relate to on-the-ground practices not just executives making fradulent claims.

For example, on 28 December 2023 Boeing asked airlines to inspect every 737 MAX plane manufactured (that’s 1,370 planes). At issue: a loose bolt in the rudder-control system. The FAA reported that an airline had found the bolt sans nut during regular maintenance, and that Boeing had discovered a 737 MAX 9, not yet delivered, with improperly tightened bolt. The inspection takes about two hours, according to the FAA. Who bears that cost? The airlines.

The part in question is a critical safety item, for which the FAA requires double inspection. That means two sets of eyes must sign off that it is ready for flight.

How is it possible that a plane not yet delivered had a rudder control problem?

In 2020, before that deferred prosecution agreement, Boeing cut the number of inspectors by one-third. The substitute? “Smart tools.”

This alone — a plane ready to be delivered with a critical component clearly not properly inspected — should invalidate Boeing’s deferred prosecution.

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As Professor Cassell wrote before the door plug blew out:

If (as expected) the Justice Department moves to dismiss the conspiracy charge against Boeing, the effect of granting that motion would be (as the Fifth Circuit pointedly noted) that “no company, and no executive and no employee, ends up convicted of any crime, despite the Government and Boeing’s DPA agreement about criminal wrongdoing leading, the district court has found, to the deaths of 346 crash victims.” The families will strenuously object to any such resolution of the case, as it is impossible to see how such a result could be consistent with the public interest (emphasis added).

I want due process for those 15 families. I am not a lawyer, so I don’t know which is the better outcome for them. However, these latest problems with the 737 MAX line suggest Boeing remains ethically bankrupt.

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Earlier reports

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KATHY GILL, Associate Editor

Known for gnawing at complex questions like a terrier with a bone. Digital evangelist, writer, teacher. Transplanted Southerner; teach newbies to ride motorcycles. @kegill (Twitter and Mastodon.social); wiredpen.com

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