The Volokh Conspiracy

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Crime Victims Rights Act

Judge O'Connor Rules that the Boeing 737 MAX Crashes Victims' Families Cannot Enforce Their Right to Confer with Prosecutors

While expressing great sympathy for the victims' families, Judge O'Connor concludes that no remedy is available for the Justice Department's failure to enforce the families' right to confer under the Crime Victims' Rights Act.


About two weeks ago, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled that families whose relatives were killed in two Boeing 737 MAX crashes could not enforce their rights under the Crime Victims' Rights Act (CVRA). This is an unfortunate ruling that, in my view, interprets the CVRA much too narrowly. On behalf of the families, I will seek review of the ruling in the Fifth Circuit tomorrow.

I have previously blogged about this case, including a post about the initial CVRA challenge and Judge O'Connor's ruling regarding "victim" status. The case arises from the Justice Department secretly negotiating a deferred prosecution agreement (DPA) with Boeing concerning its crimes connected to the  two Boeing 737 MAX crashes. Both crashes were caused by a new part Boeing built into the 737 MAX–a software system called the Maneuvering Characteristics Augmentation System (MCAS).  Tragically, in the two crashes, MCAS improperly activated and drove the planes down. 346 people died in the crashes.

After the two crashes, the Justice Department began investigating whether Boeing had lied to the Federal Aviation Administration (FAA) about the new MCAS system. Ultimately, the Justice Department learned that Boeing had concealed from the FAA how MCAS operated. The reason for the deception was to secure less onerous training requirements for pilots transitioning to fly the MAX from other older 737 models. These less-rigorous training requirements enabled Boeing to earn millions of dollars when selling the plane; as a selling point, Boeing had promised its airline customers that additional flight simulator training would not be required for pilots already qualified to fly the 737 MAX's predecessors.

In late 2020 and early 2021, the Justice Department and Boeing negotiated a DPA. The agreement was swiftly criticized as being one of the worst plea agreements in history. Critics pointed out that the $1.7 billion payment to customers was something that Boeing was already contractually obligated to do; the amount was included in the DPA to inflate the apparent amount of the settlement. Moreover, the agreement contained an unprecedent provision in which the Justice Department stated (without explanation) that "the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior mismanagement."

But the DPA's worst feature was that it was negotiated secretly.  In the federal criminal justice system, the CVRA requires prosecutors to afford to crime victims the reasonable right to confer about a case and also timely notice of any deferred prosecution agreement. In a case involving the death of a crime victim, a surviving family member can step into a case to assert the rights of the person killed. The families should have been involved in negotiating such a far-reaching agreement. Instead, the families learned about the deal only through media reports.

In December 2021, on behalf of eighteen family members of the crash victims, I filed a CVRA challenge to Boeing's DPA. After briefing and an evidentiary hearing, in October 2022 Judge O'Connor ruled that those killed in the crashes were "crime victims" of Boeing's crime of conspiring to defraud the FAA.  (Yesterday I blogged about my new, co-authored law review article, discussing that important issue of "victim" definition.) Accordingly, because the Justice Department had never conferred with the families, the Department had violated their rights under the CVRA. Judge O'Connor then directed briefing on the appropriate judicial response to that proven violation.

Following briefing by the Department and Boeing–and a response from the victims' families–Judge O'Connor ruled that families could not enforce their rights. Here is the conclusion from the thirty-page opinion:

This Court has immense sympathy for the victims and loved ones of those who died in the tragic plane crashes resulting from Boeing's criminal conspiracy. Had Congress vested this Court with sweeping authority to ensure that justice is done in a case like this one, it would not hesitate. But neither the Speedy Trial Act nor this Court's inherent supervisory powers provide a means to remedy the incalculable harm that the victims' representatives have suffered. And no measure of sympathy nor desire for justice to be done would legitimize this Court's exceeding the lawful scope of its judicial authority.

The Speedy Trial Act gives the Executive exclusive discretion to negotiate deferred prosecution agreements without judicial oversight, even in response to the most heinous crimes. Despite increasing and perhaps legitimate criticism of these agreements, Congress—not the courts—is the appropriate venue to redress the inadequacies of this statutory enactment. In our system of justice, a judge's role is constitutionally confined to interpreting and applying the law, not revising it. For this Court to step outside those constitutional bounds in an attempt to remedy wrongs it has no legitimate authority to correct would compound injustice, not see justice through.

In my view, Judge O'Connor's opinion takes an unduly restricted view of judicial authority to enforce CVRA rights. I will be presenting those arguments tomorrow in a petition to the Fifth Circuit. I'll try and pass along some highlights from the petition after it is filed.