A Fifth Circuit Bait-and-Switch to Ignore Crime Victims' Rights
In 2023 the Fifth Circuit denied the victims' families challenge to the illegally negotiated Boeing DPA as being "premature"--but today the Circuit denied the families' challenge as coming too late.
Today the Fifth Circuit denied my Crime Victims' Rights Act (CVRA) challenges to the Justice Department's 2021 deferred prosecution agreement (DPA) and 2025 non-prosecution agreement (NPA) with Boeing. VC readers will recall this case, as I have blogged about it many times over the years, including here, here, and here. In today's ruling, the Circuit said that the families' victims rights challenges to these agreements came too late to allow any remedy. But earlier, in 2023, the Circuit had said that the families' challenges were "premature." The fact that the families now will seemingly never receive any remedy is a cruel judicial bait-and-switch, revealing how much work remains to be done to create truly enforcable crime victims' rights in the criminal justice system.
Here's the case in a nutshell: In and around 2016 to 2019, Boeing lied to the FAA about the safety of its new 737 MAX aircraft. When two MAX aircraft crashed in late 2018 and then again in early 2019, the Justice Department investigated. And, in 2021, the Department charged Boeing with criminal conspiracy to defraud the FAA through its lies. But the Department immediately entered into a DPA in the Northern District of Texas to resolve the criminal case.
In subsequent litigation, the families proved that the 346 passengers and crew on board the two doomed 737 MAX flights were "crime victims" under the CVRA—they had been directly and proximately harmed by Boeing lies. If Boeing had revealed the safety issues surrounding the MAX to the FAA, the result would have been training of pilots that would have prevented the two crashes. This makes Boeing's conspiracy crime the "deadliest corporate crime in U.S. history," as Judge Reed O'Connor in the Northern District of Texas later described it.
In their litigation, the victims' families challenged the sweetheart DPA, which allowed Boeing to avoid a criminal conviction in exchange for payment of penalties and compensation to the families, along with Boeing's promises to improve safety in its manufacturing processes. The families explained--and proved--that the Justice Department had concealed the DPA from the victims' families, violating the CVRA which required the Justice Department to confer with the prosecutors. In October 2022, Judge O'Connor concluded that the Justice Department had violated the families' CVRA rights connected to the DPA by failing to confer. But later, in January 2023, Judge O'Connor ruled, quite reluctantly, that he was powerless to provide the victims' families with any remedy.
In February 2023, I filed a petition with the Fifth Circuit asking it to overturn Judge O'Connor's ruling that he could not award any remedy for the CVRA violation. After oral argument, in December 2023, the Fifth Circuit ruled that any relief was "premature" because it was confident that the district court would uphold the families' CVRA "rights at every stage of the court's criminal proceedings." In re Ryan, 88 F.4th 614, 627 (5th Cir. 2023). Accordingly, the Fifth Circuit denied the petition to allow proceedings to continue in the district court.
Less than a month later, the DPA's three-year term was set to expire on January 7, 2024. But two days before that expiration, on January 5, 2024, a mid-cabin door plug on Alaska Airlines Flight 1282 suddenly detached from a Boeing 737 MAX, exposing Boeing's failure to follow its DPA safety obligations. In light of these and numerous other dangerous failures by Boeing, in May 2024, the Justice Department determined that Boeing had breached its obligations under various DPA provisions. Further negotiations between the Justice Department and Boeing produced a proposed guilty plea arrangement between Boeing and the Justice Department—and objections to the plea from the victims' families. And in December 2024, the district court rejected the proposed guilty plea. The district held that, for various reasons, the agreement was not in the public interest.
In the most recent proceedings, the Justice Department moved to dismiss its earlier-filed charge against Boeing in favor of resolution through a non-prosecution agreement (NPA). The Department and Boeing entered into a binding NPA, and then afterwards the Department moved to dismiss the pending charged under Rule 48(a) of the Federal Rules of Criminal Procedure.
I filed objections for the families to the dismissal motion, arguing that it was (finally) time to award a remedy for the Department's CVRA violations all the way back in 2021, when it entered into the DPA and concealled what it was doing from the victims' families. And I also argued that the Department had failed to properly confer about its new NPA.
Following oral argument, in November 2025, Judge O'Connor granted the Justice Department's dismissal motion. 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. Indeed, he even stated that the NPA was not consistent with the public interest. But, reluctantly, Judge O'Connor granted the Department's motion to dismiss the charge, concluding that he lacked a legal basis for blocking the Department's ill-conceived non-prosecution plan.
In December, I filed two CVRA petitions for review with the Fifth Circuit. The first petition challenged Judge O'Connor's failure to award any remedy for the violation of the families' CVRA rights when the DPA was negotiated and consumated. The second petition challenged Judge O'Connor's decision to approve dismissal of the charge against Boeing based on the new NPA.
Today, the Fifth Circuit rejected both of my petitions in a ten-page per curiam order.
With regard to my first petition arguing that the Judge O'Connor should have remedied the CVRA violations connected to the DPA, the Circuit concluded that the petition was moot:
Agreements not to prosecute are "contractual in nature, and are therefore interpreted in accordance with general principles of contract law." United States v. Castaneda, 162 F.3d 832, 835 (5th Cir. 1998). Under those principles, a third-party's challenge to a contract that no longer binds a contracting party is moot. Bender v. Donoghue, 70 F.2d 723, 724 (5th Cir. 1934). When Boeing violated the DPA, the agreement's express terms made Boeing "subject to prosecution for any federal criminal violation," thus relieving the Department of its obligations under the agreement. At that point, the agreement no longer bound the contracting parties and any challenge based on its terms became moot.
With regard to my second petition arguing that Judge O'Connor should have rejected the NPA, the Circuit rejected my argument that the Department had deceived the families by failing to tell them that it planned to entered in a binding NPA with Boeing before presenting a motion to dismiss to the district court. In my brief, I explained that in the more than 70-year history of Rule 48(a) dismissals, the Justice Department had never before entered into a binding agreement not to prosecute before presenting its dismissal motion to the district court. Nonetheless, the Circuit concluded:
The families were entitled to a "reasonable right to confer" with the prosecution. 18 U.S.C. § 3771(a)(5). They were afforded this right when the prosecution met with them via video call in May 2025. During that call, the prosecution compare[d] [its] views" with those of the families, thereby conferring with them as the CVRA requires. Even assuming the prosecution could have been clearer about its intention to enter an NPA before the district court ruled on a motion to dismiss, the families cite no authority for the proposition that this means the Department failed to "confer" with them as the CVRA demands. See 18 U.S.C. § 3771(a)(5).
It should come as no surprise that, as counsel for the victims' families, I find today's ruling to be not only legally incorrect but fundamentally offensive. Regarding the 2021 DPA, today's ruling is an absurd bait-and-switch. Back in 2023, the victims' families asked the Fifth Circuit to set aside the DPA so that they would have their promised CVRA right to confer with prosecutors before the Justice Department reached any agreement with Boeing. The Circuit agreed that the Justice Department had violated families' CVRA right to confer. But it denied relief at that time as "premature"--and promised the families that the district court would "uphold crime victims' statutory rights at every stage of the court's criminal proceedings." Ryan, 88 F.4th at 627 (emphasis added). Indeed, the Circuit stressed that the district court must "uphold victims' CVRA rights throughout the instant criminal proceedings." Id. at 629 (emphasis added). These earlier promises from the Fifth Circuit's earlier (2023) decision were the centerpiece of my arguments to the Circuit this year. I cited the italicized language above repeatedly--yes, repeatedly--in my briefs and oral argument.
And yet, in today's decision, the Court simply ignored its earlier promises. It did not cite, much less discuss, the language above. Whatever else can be said about today's decision, it is clear that the result is that the victims' families rights were not upheld at "every stage" of the proceedings below. Indeed, the Justice Department violated families' CVRA rights at the critical first stage of the proceedings, when it entered into the sweetheart DPA that set the unfortunate trajectory for the rest of the case.
Regarding the 2025 NPA, the Circuit briefly acknowledged that the Department "could have been clearer" about its plan to enter into an NPA before presenting its motion to dismiss to the district court. But the Circuit skips over the families' argument the NPA provision promising no-further-prosecution of Boeing had already gone into effect before the victims' families knew about it, effectively rendering meaningless the families' later objections to the motion to dismiss.
The Department's concealment was particularly misleading against the backdrop of the Department's decades-long practice of presenting a motion to dismiss to the district court before consummating a formal agreement not to prosecute. As I stated in an uncontested affidavit, based on extensive experience with the federal criminal justice system, "it was a clear and substantial deviation from normal criminal justice processes" for the Justice Department to take such a step."
In the proceedings in the district court, the victims' families repeatedly called the Government's approach "unprecedented." See NPA Pet. at 18 (collecting record
citations). Neither the Government nor Boeing offered any precedent below.
In today's ruling, however, the Circuit seems to have bizarrely flipped things around. Without questioning my argument for the families that the Department's approach was unprecedented, the Circuit rejected my claim the Department deceived the families because "the families cite no authority for the proposition that this [failure to disclose what the Department was doing] means the Department failed to 'confer' with them as the CVRA demands." So the families lose because the Department employed an unprecedented manuever--and then the families have no legal authority they can cite about why that manuever was deceptive?!
More broadly, today's ruling demonstrates how much work remains to be done to enforce Congress' promises in the CVRA to crime victims and their families. In this very high-profile case involving the deaths of hundreds, the Department violated the CVRA by failing to confer with the families--and then, according to the Fifth Circuit, the courts are powerless to do anything about it. I know my families' are furious about today's ruling. Crime victims' rights advocates feared that then Congress passed the CVRA, the courts would undercut its effective enforcement through unwarranted and chary readings of its provisions. Sadly, today's ruling proves that those fears were well-founded.
And ominously, today's ruling leaves in place a NPA with the Boeing that does not properly protect public safety. In reviewing the NPA, Judge O'Connor ruled that the families were "correct that this agreement fails to secure the necessary accountability to ensure the safety of the flying public." That chilling conclusion—standing alone—should have led to a different outcome. Time will tell whether today's ruling leaving the NPA in place will have fatal consequences.