The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge O'Connor Grants the Government's Motion to Dismiss the Conspiracy Charge Against Boeing …
... but does so reluctantly, calling the objections to the dismissal "compelling" and castigating the Justice Department for its failure "to secure the necessary accountability to ensure the safety of the flying public."
Today Judge Reed O'Connor (U.S. District Court for the Northern District of Texas) granted the Justice Department's motion to dismiss the pending criminal charge against Boeing. In his order, Judge O'Connor essentially agreed with many of the factual objections that I have made for the families who lost loved ones because of Boeing's crime. But, reluctantly, Judge O'Connor dismissed the charge, concluding that he lacked a legal basis for blocking the Department's ill-conceived non-prosecution plan. On behalf of my clients, I will quickly be seeking review of this ruling by the Fifth Circuit. It is hard to understand how a dismissal that is so clearly contrary to the manifest public interest can be upheld.
I've blogged about the Boeing criminal case a number of times before, including here, here, and here. In a nutshell, Boeing lied to the FAA about the safety of its 737 MAX aircraft. The Justice Department charged Boeing with conspiracy for these lies, but then immediately entered into a deferred prosecution agreement (DPA) to resolve the criminal case. In subsequent litigation, I proved that the 346 passengers and crew on board two doomed 737 MAX flights were "crime victims" under the CVRA—they had been directly and proximately harmed by Boeing crime. This makes Boeing's conspiracy crime the "deadliest corporate crime in U.S. history," as Judge O'Connor described it.
But in earlier proceedings, Judge O'Connor concluded that he could not intervene to protect victims' rights, even though the DPA had been negotiated secretly and in violation of the families' CVRA rights. And the Fifth Circuit ruled that any intervention by it was "premature."
Then, in 2024, after Boeing breached its DPA, the Department proposed a guilty plea with Boeing to resolve the pending charge. Judge O'Connor rejected the plea deal last December. But, most recently, at the end of May this year, the Department backtracked. Instead of seeking a plea deal, it signed a non-prosecution agreement (NPA) with Boeing. After signing its NPA with Boeing, the Department filed a motion to dismiss the pending conspiracy charge under Rule 48(a). The victims' families I represent objected. And today, Judge O'Connor overruled those objections and dismissed the case.
Judge O'Connor concluded that the victims' families' arguments against this dismissal were "compelling." For example, the families' had argued that simply dismissing the charges against Boeing could not ensure the public safety. Judge O'Connor summarized things pithily in recounting that "the Government's position in this lawsuit has been that Boeing committed crimes sufficient to justify prosecution, failed to remedy its fraudulent behavior on its own during the [term of the Deferred Prosecution Agreement] which justified a guilty plea and the imposition of an independent monitor, but now Boeing will remedy that dangerous culture by retaining a consultant of its own choosing." In light of that tortured history—and the Department's "continued failure to gain Boeing's compliance" with its previous DPA obligations—the victims' families are "correct," concluded Judge O'Connor, that the current NPA "fails to secure the necessary accountability to ensure the safety of the flying public."
Judge O'Connor also addressed the Justice Department's claim that it needed to enter into a non-prosecution agreement in order to assure an appropriate resolution. Judge O'Connor wrote that the Department's claim of "'uncertainty and litigation risk presented by proceeding to trial' is unserious. The [Department] has a confession from Boeing, signed by the CEO and Chief Legal Officer, admitting to all the elements of the conspiracy charge against it in the DPA. As such, the assertion that there is a legitimate risk that Boeing would be acquitted at a trial lacks support."
But even while agreeing with many of the victims' families' arguments, Judge O'Connor ultimately concluded that he had to approve the deal. First, Judge O'Connor concluded that the Department had complied with its Crime Victims' Rights Act (CVRA) obligations because it held a conference call with the families before reaching the deal.
More broadly, Judge O'Connor decided that he was not entitled to prevent the abuse of discretion that the dismissal embodied:
The Court recognizes that "in every political institution a power to advance the public happiness involves a discretion that may be abused." THE FEDERALIST NO. 41 (James Madison). Nevertheless, poor discretion may not be countered with judicial overreach: "the judges can exercise no executive prerogative, though they are shoots from the executive stock." THE FEDERALIST NO. 47 (James Madison). The Court acknowledges that it does not have the authority to deny leave because it disagrees with the Government that dismissing the criminal information in this case is in the public interest. Accordingly, because the Government has not acted with bad faith, has given more than mere conclusory reasons for its dismissal, and has satisfied its obligations under the CVRA, the Motion to Dismiss is GRANTED.
Unsurprisingly, the families whom I represent strongly object to this dismissal and have asked me to pursue appropriate appellate review. For example, Javier de Luis of Massachusetts, who lost his sister in the 2019 crash of a Boeing 737 MAX 8 in Ethiopia, commented that: "The judge in this case agrees that Boeing cannot be trusted to put safety ahead of their own bottom line. He agrees that the DOJ motion is not in the public interest. Unfortunately, he also believes that he is powerless to do anything about it. But it is important for the public to understand these points. Boeing bought itself a get-out-of-jail-free card. I pray it is not paid for by future families, who will find themselves in our position, seeking justice for yet another plane full of innocent victims."
Paul Njoroge from Canada who lost his family—his wife and three small children—similarly commented: "Judge O'Connor's decision to grant the DOJ's request to dismiss this case feels like the justice system turning its back on us, the victims' families. We have been consistent in only demanding a day in court, the public against Boeing. We have not gotten that. Our pursuit for justice isn't about vengeance—it's about truth, transparency, and public safety. When a company's failures cost so many lives, ending a criminal case behind closed doors erodes trust and weakens deterrence for every passenger who steps onto a plane. The families have carried unbearable loss; the very least we deserve is a transparent process and real accountability. Anything less tells the world that powerful corporations play by different rules—and that cannot be the legacy of this tragedy."
I am now preparing to file a petition for a writ of mandamus to the Fifth Circuit—the procedural mechanism that the CVRA specifies for crime victims and their families to pursue appellate relief. In its previous ruling on this case, the Fifth Circuit denied the earlier petition that I filed, explaining that:
mandamus intercession is premature. Thus far, the district court has demonstrated careful competence that, whereas it cannot substantively revise the DPA between the Government and Boeing, it nonetheless must uphold crime victims' statutory rights at every stage of the court's criminal proceedings. If a sought-for final stage is a Government motion to dismiss, we are confident … that the district court will assess the public interest according to caselaw as well as the CVRA, including violations already admitted to, as well as any other circumstances brought to its attention by the victims' families. See United States v. Hamm, 659 F.2d 624, 629 (5th Cir. Unit A Oct. 1981) (en banc) (reiterating Supreme Court and prior Fifth Circuit precedent that district judges are empowered to deny dismissal when "clearly contrary to manifest public interest" as assessed "at the time of the decision to dismiss") ….
In today's ruling, Judge O'Connor appeared to believe that he was not, in fact, "empowered to deny dismissal" even though the dismissal was "clearly contrary to manifest public interest." I hope to convince the Fifth Circuit that Judge O'Connor got it wrong. If any dismissal is contrary to the public interest, this is the one. The law is not an ass, and trial judges need not stand idly by while an injustice is done.
