Mariya Mujahid
Associate Editor
Loyola University Chicago School of Law, JD 2026
Boeing’s controversial history including the publicized suicide of one of its whistleblowers shortly before his deposition to TikTok videos of panels blowing off mid-air or planes catching fire have prompted public scrutiny. These events, mainly the latter, have raised also questions about Boeing’s compliance with Federal Aviation Administration (FAA) regulations the Department of Justice (DOJ) rulings. However, this is not the first time these concerns have come to light.
Notable Incidents
In October 2018, Lion Air Flight 610, a Boeing plane, crashed shortly after takeoff from Jakarta, Indonesia, resulting in the tragic loss of all 189 passengers and crew members on board. Investigations into the crash revealed that an automated flight control system known as MCAS (Maneuvering Characteristics Augmentation System) played a critical role. The system, designed to prevent stalls by automatically adjusting the aircraft’s angle of attack, malfunctioned due to erroneous sensor data, causing the plane to repeatedly nosedive despite the pilots’ efforts to regain control.
Just five months later, in March 2019, Ethiopian Airlines Flight 302, another Boeing 737 MAX, crashed shortly after departing from Addis Ababa, Ethiopia, killing all 157 people on board. Similarities between the Lion Air and Ethiopian Airlines crashes, particularly the involvement of the MCAS, prompted aviation authorities worldwide to ground the Boeing 737 MAX fleet indefinitely.
Following a Justice Department investigation into these two crashes, Boeing reached a settlement with the Justice Department in 2021, in which it paid a $244 million fine and approximately $2.3 billion in compensation to the families of the crash victims, as well as to airline customers. Boeing also received a deferred prosecution deal that protected it from a conspiracy charge to defraud the US, on the condition it avoid any legal issues for three years. This probationary period is not uncommon with criminal charges against large companies; both Ericsson and Deutsche Bank have agreed to (and broken) similar deals.
However, the recent incidents, namely the one involving an external panel of a Boeing plane flying off midflight, have resulted in Boeing’s violation of its probationary period. Under the Biden administration, the DOJ has applied heavier scrutiny to these deferred prosecution agreements, finding Ericsson and Deutsche Bank in violation of theirs. Families of the victims of both crashes suggested charging the company or ex-Boeing chief executive Dennisi Muilenburg with manslaughter.
On June 30th, 2024, Boeing was offered, by the US government, what opponents are calling a “sweetheart deal.” In exchange for pleading guilty to fraud, Boeing will have to pay a fine, agree to another three-year probationary period, and an independent monitor to ensure it follows regulations. If Boeing does not agree to the plea deal and moves forward to trial, it could jeopardize its ability to remain a government contractor. While this is not in stone, prosecutors may consider this a consequence. However, Boeing could potentially remain a U.S defense contractor despite a potential felony conviction.
What are the regulatory steps being taken going forward?
The head of the FAA is set to testify on September 24th, 2024, to the House of Representatives Transportation committee, and on September 25th, 2024, to the Senate Permanent Subcommittee on Investigations. The hearings will focus on Boeing’s quality improvement plan that it was ordered to develop following the January 5th mid-air incident on an Alaska Airlines flight. The chair of the Senate committee, Senator Richard Blumenthal characterized the committee’s goals as learning what the FAA knew and when it knew about Boeing’s quality and safety concerns. The Senator blamed Boeing for the incidents, telling Reuters that “Boeing’s culture pushed workers to conceal problems that required federal inspectors’ attention.”
This is an irresponsible characterization of Boeing’s contempt for any kind of oversight; the FAA is to blame as well, nearly as much as Boeing. Mike Whitaker, the FAA Administrator, admitted that the agency had been “too focused on paperwork audits and not focused enough on inspections,” but said that because of the Alaska Airlines incident earlier this year, the FAA was implementing more active oversight in Boeing’s factories. More active oversight, however, is a low bar.
Congressional hearings following the Boeing crashes in Ethiopia and Indonesia determined that any regulatory oversight Boeing was held to was in their hands alone. Employees flagged safety issues and manufacturing irregularities to no avail. Boeing’s goal, and one it succeeded at, was to push regulators back from the manufacturing process and take a broader approach to oversight. Once Boeing began to decentralize its supply chain in the early 2000s, inspection by the FAA became increasingly difficult, and rather than even attempt to assert regulatory power over the process, the agency chose to take the word of Boeing and its suppliers that “everything would be fine.” The FAA conceded that, absent delegation to the manufacturer, it would be “virtually impossible to keep up with the industry.” The FAA is nearly equally as complicit as Boeing when it comes to the damage caused by the lack of quality and safety assurances. Regardless of Boeing’s efforts to evade oversight, decades of the FAA’s shoddy work has led to hundreds of deaths, and they should be held accountable as much as Boeing is. The congressional hearings this week will likely answer more questions about the FAA’s lack of regulatory oversight into Boeing, and the steps being taken to resolve it.