The Volokh Conspiracy

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Victims' Families File Petition in the Fifth Circuit Seeking to Enforce Rights in the Boeing Case

The families argue that they should have been given an opportunity to confer with prosecutors under the Crime Victims' Rights Act before Boeing's deferred prosecution agreement was finalized.


Earlier today, I filed a Crime Victims' Rights Act (CVRA) petition in the Fifth Circuit for families whose relatives were killed in two Boeing 737 MAX crashes. The petition argues that the U.S. District for the Northern District of Texas (O'Connor, J.) erred in ruling that it could not provide a remedy for the Justice Department's failure to confer with the families before the Department finalized its deferred prosecution agreement (DPA) with Boeing. I've blogged about this case previously—including posts about the initial CVRA challenge, the district court's ruling finding "victim" status, and the district court's recent ruling finding that the families could not enforce their rights. In this post, I summarize the arguments in the petition for overturning the district court's recent ruling.

As discussed in earlier posts, the case arises from the Justice Department secretly negotiating a DPA with Boeing, immunizing it from prosecution for its crime of concealing safety information about the 737 MAX from the FAA. The district court had previously ruled that the families represented "crime victims" under the CVRA, because Boeing's crime  directly and proximately caused the  two Boeing 737 MAX crashes. (If you're interested in the topic of how to define a "victim" in the CVRA and other enactments, I've just released a co-authored law review article on the issue.) And the court had previously ruled that the Justice Department had violated the families' CVRA right to confer with prosecutors by secretly cutting the deal. But two weeks ago, in a thirty-page opinion, the district court ruled that it could not enforce the families' rights.

In the petition, I argue that the district court was, indeed, empowered to enforce the families' rights. Here's the introduction (some citations removed):

This case arises out of "the deadliest corporate crime in our nation's history." As the district court found, Boeing's conspiracy to defraud the FAA directly and proximately killed 346 people—leaving behind 346 grieving families. Congress gave those families rights under the Crime Victims' Rights Act. But the Government cared more about protecting Boeing's reputation than the families' rights.  It misled the families as to whether a criminal investigation existed and then secretly cut a deferred prosecution deal without informing the families at all.

Among the rights that Congress protected was a victim's "reasonable right to confer" with prosecutors. 18 U.S.C. § 3771(a)(5). And in 2015, Congress reinforced this right, by mandating that a victim has "[t]he right to be informed in a timely manner of any . . . deferred prosecution agreement." 18 U.S.C. § 3771(a)(9). And Congress has broadly protected crime victims' rights "to be treated with fairness." 18 U.S.C. § 3771(a)(8).

The reason Congress established these rights is straightforward. As this Court explained in In re Dean, 527 F.3d 391 (5th Cir. 2008), "[i]n passing the Act, Congress made the policy decision—which we are bound to enforce—that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached." Id. at 395 (emphasis added).

In this case, the victims' families were denied these promised rights—as the district court specifically found. But then, the district did nothing. In doing nothing, the district court failed to discharge its CVRA obligation that it "shall ensure that . . . crime victim[s] are afforded the rights described in [the CVRA]." 18 U.S.C. § 3771(b)(1) (emphasis added). Rather than follow the CVRA's plain language requiring it to "ensure" that the families were afforded their rights, the district court held that meaningless, post hoc "listening sessions" could substitute for the meaningful, pre-charging conferral that Congress mandated.

The district court abdicated its CVRA responsibility to "ensure" that the victims' families were afforded their rights. In the CVRA, Congress promised the families that they would have the opportunity to take part in shaping the scope of Boeing's DPA by conferring with prosecutors before they finalized the DPA. This Court should grant the families' petition and enforce Congress's command.

The argument section to the petition then explains each of the three CVRA rights that the Justice Department violated: (1) the right to confer; (2) the right to timely notice of a DPA; and (3) the right to be treated with fairness. The district court had ruled that the Department violated each of these three rights.

The petition then sets out why the district court was empowered to enforce these rights by (for example) excising from Boeing's DPA the "immunity provisions" so that the victims' families could confer with the Justice Department about prosecuting Boeing:

The primary statutory authority that the families cited was the CVRA's judicial enforcement provision, 18 U.S.C. § 3771(b)(1). That provision directly requires that a district court "shall ensure" that the victims' families are "afforded the rights described in the [CVRA]." See United States v. Atl. States Cast Iron Pipe Co., 612 F.Supp.2d 453, 458 (D.N.J. 2009) (the CVRA specifically "places responsibility on the [district] court for its implementation, requiring that 'the court shall ensure that the crime victim is afforded [those] rights'" (emphasis added)). Indeed, as the CVRA's Senate co-sponsor explained, "it is the clear intent and expectation of Congress that the district . . . courts will establish procedures that will … giv[e] meaning to the rights we establish." 150 Cong Rec. 22953 (Oct. 9, 2004) (statement of Sen. Kyl). See, e.g., Kenna, 435 F.3d at 1017 (when a victim is denied his right to speak at a sentencing hearing, "the only way to give effect to [the victim's CVRA] right to speak . . . is to vacate the sentence and hold a new sentencing hearing").

The petition also reviews the CVRA's "statutory history" (which is different than legislative history)–a history that demonstrates Congress's intent to create enforceable rights in the CVRA:

The CVRA's statutory history demonstrates this provision's broad sweep. See In re Crocker, 941 F.3d 206, 213 (5th Cir. 2019) (noting legitimacy of looking to "[e]nacted revisions in the wording of statutes"). Congress crafted the CVRA to replace the ineffective Victims' Rights and Restitution Act of 1990 (VRRA). See Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims' Rights Act, 2005 BYU L. Rev. 835, 844-52. The VRRA contained a list of rights similar to those contained in the CVRA—including a right to "confer with [the] attorney for the Government in the case." 42 U.S.C. § 10606(b)(5) (replaced by CVRA in 2004). But those rights proved to be unenforceable in court in the Oklahoma City bombing case. See United States v. McVeigh, 106 F.3d 325, 335 (10th Cir. 1997) ("[t]he district court judge, a judicial officer not bound in any way by [the VRRA] … [rights], could not violate the Act.").

Seven years later, Congress enacted the CVRA and rejected McVeigh. The CVRA was "meant to correct, not continue, the legacy of the poor treatment of crime victims in the criminal process" by replacing "cases like the McVeigh case, where victims of the Oklahoma City bombing were effectively denied the right to attend the trial …." 150 Cong. Rec. S4260-01 (Apr. 22, 2004) (statement of Sen. Feinstein). Thus, the CVRA moved victims' rights directly into Title 18 and added specific language—the judicial enforcement provision—obligating district courts to enforce CVRA rights. 18 U.S.C. § 3771(b)(1). The plain and mandatory language of that provision—"shall ensure"—reflects Congress's understanding that courts "will be responsible for enforcing [the CVRA] rights." 150 Cong. Rec. S4269 (Apr. 22, 2004) (statement of Sen. Feinstein in colloquy with Senator Kyl).

These are some of the main arguments in the petition.  You can read the whole things here.

While a briefing schedule has yet to established, if the Fifth Circuit calls for a response from the Department and Boeing, we have agreed to a stipulated schedule where they will have 30 days to respond and then we will have 21 days to reply.

Obviously, I hope that the Fifth Circuit will grant the petition. As I explained in the conclusion to the petition: "This case may be the most important in the CVRA's nearly twenty-year history." If the Government can get away with violating the 346 families' CVRA rights in this case, "then Congress enacted a dead letter."