In a legal filing Tuesday, the U.S. Department of Justice rejected a plea by the families of those who died in the two Boeing 737 MAX crashes to throw out the heavily criticized settlement it reached with the company last year.
In doing so, the DOJ explained why it decided against criminally prosecuting Boeing. The government’s lawyers declined to identify a new Boeing flight control system on the MAX as a major factor in the crashes.
That decision hints at why Boeing executives have declined to publicly admit full responsibility.
The January 2021 settlement imposed a fine of $244 million on Boeing while exonerating senior management of wrongdoing.
The DOJ later criminally charged just one lower level employee, Chief Technical Pilot Mark Forkner, with deceiving the Federal Aviation Administration.
Defending the settlement, the Justice Department argued that it wasn’t able to criminally charge Boeing because its investigation “did not produce evidence that it believed would allow it to prove beyond a reasonable doubt what factors had caused the crashes.”
Elaborating on why it couldn’t pin any specific charge of negligent homicide on Boeing, the filing cited the FAA as stating that the flawed flight control system on the MAX — the Maneuvering Characteristics Augmentation System (MCAS) — “may have played a role” in the plane crashes.
The important emphasis on the words “may have” was added by the DOJ in the legal filing. Indeed, Boeing executives have never publicly admitted that the flaws in the design of MCAS played a central role in the crashes.
But almost three years after the second crash in Ethiopia and multiple investigations that identified the original design of MCAS as a major factor in the crashes, that equivocation is not the judgment of the aviation world.
The final investigative report into the first crash in Indonesia that killed 189 people identified the reliance of MCAS on a single sensor and the way it activated repeatedly during the short flight as major contributing factors.
The preliminary report into the second crash that killed an additional 157 people in Ethiopia found that Boeing failed to properly assess the consequences of an MCAS failure.
An international panel of air safety regulators convened by the FAA laid out how MCAS contributed to the accidents and concluded the system was not properly evaluated in the certification documents that Boeing submitted to the FAA.
“There’s no doubt MCAS was certainly causal in the accidents. A major cause,” said John Cox, founder of Safety Operating Systems, an aviation safety consultancy. “It was clearly a flawed design.”
Jim Hall, former chairman of the National Transportation Safety Board, called the DOJ’s questioning that MCAS played a major part in the accidents “extremely strange.”
Jeff Guzzetti, former FAA and NTSB investigator and now an aviation safety consultant, said “MCAS absolutely played a role in the accidents. There is no doubt.”
“Obviously there are other contributing causes,” Guzzetti said. “But at this point, with everything we know, you cannot say MCAS may not have been involved.”
And speaking almost two years ago on the sidelines of one of the last aviation conferences before COVID shut down the world, top Boeing customer and chairman of Air Lease Corp. Steven Udvar-Hazy, a trained pilot, described how he had recently tested MCAS in a simulator after the accidents and made no equivocation in his judgment.
“Had there been no MCAS system, those planes wouldn’t have crashed,” Udvar-Hazy said. “Had there not been anything like that, all those people may still be alive.”
Lawyers for the families of the crash victims had argued that under the terms of the Crime Victims’ Rights Act they should have been consulted before a settlement was reached. The Justice Department responded that the families aren’t legally “crime victims” because Boeing was not charged with a crime.
“The Government did not charge Boeing with any form of federal negligent homicide in connection with the crashes,” the filing states.
Since this was based on the notion that MCAS could not be definitively proven to be a major cause of the accidents, it highlights why Boeing executives have repeatedly declined to publicly admit to the flaws in MCAS — the reliance on a single sensor, its repeated activation, its power to overcome the pilot’s commands.
