There are numerous compelling reasons to challenge the plea agreement negotiated between the Department of Justice and Boeing. The extensive investigation into the multiple crashes of the Boeing 737 Max reveals significant failures that occurred after the company entered into a deferred prosecution agreement, committing to reforms. This investigation set the groundwork for a potentially explosive trial that could have resulted in substantial compensation for the families affected by the tragedies. Instead, the DOJ settled for a fine of approximately $230 million and a commitment to appoint an independent monitor to ensure Boeing’s compliance. A judge may rightfully view this arrangement as a troubling sweetheart deal that fails to provide justice.
However, Judge Reed O’Connor is not your average judge; he rejected this plea deal based on the parties’ agreement to refrain from discrimination when selecting the independent monitor. This raises significant questions about the fairness and integrity of the process.
O’Connor, known for his often-overturned rulings, has a history of attempting to invalidate significant legislation such as Obamacare and the Indian Child Welfare Act, only to be reversed repeatedly. Now, he finds himself presiding over the Boeing case, and he has chosen to reject the plea deal for what many would consider a rather misguided reason.
The plea agreement stipulates that hiring an independent compliance monitor is a special condition of probation. This means that if Boeing fails to retain this monitor, it would be in violation of its probation terms. However, the agreement notably does not require Boeing to comply with the monitor’s anti-fraud recommendations as a condition of probation. Furthermore, the independent monitor will be selected by the Government and will report to it, not the Court. Additionally, Boeing retains the opportunity to block the hiring of one of the six candidates proposed by the Government. Ultimately, the selection process for the independent monitor is stated to be aligned with the Department’s commitment to diversity and inclusion.
(Relevant language in bold)
It’s crucial to note that this agreement does not guarantee that the DOJ will actually hire a candidate who enhances diversity for this position or that any affirmative action policy will be applied. The language used is typical boilerplate found in both public and private sectors, essentially stating, “We promise not to discriminate.”
To illustrate this point, one only needs to look at the current composition of the Department of Justice, which is predominantly composed of white men. Specifically, the DOJ consists of around 40% women and 67% white individuals. This reality underscores the challenge of prioritizing genuine diversity while also ensuring effective legal representation.
O’Connor argues that existing laws inherently prohibit discrimination, and he believes that including such language in contracts must signal something beyond the law’s strict requirements. While this perspective diverges from the typical understanding of contractual agreements, it is essential to consider his reasoning.
Importantly, the plea agreement does not specify what is meant by “diversity” and “inclusion.” To clarify these terms, the Government references a 2021 Executive Order aimed at “advancing equity within the Federal Government” and “cultivating a workforce that reflects the full diversity of the Nation.” This Executive Order describes “diversity” as the practice of incorporating various communities, identities, races, ethnicities, backgrounds, abilities, cultures, and beliefs, particularly from underserved communities. Meanwhile, “inclusion” is defined as the recognition and appreciation of the skills and talents of individuals from all backgrounds.
These definitions are sourced from the Executive Order 14035 and serve to illuminate the government’s broader commitment to diversity. However, O’Connor’s interpretation suggests that the federal government may be overzealously filling positions with women and minorities without regard for merit. Nevertheless, the order itself is committed to upholding “merit system principles” as its primary focus, while also vaguely promising to seek out strategies to enhance diversity and inclusion.
It does not endorse race-based hiring practices, except in scenarios where a candidate from a diverse background competes for a role and secures it based on merit.
While the Government assures the Court that it will consider candidates from all backgrounds, the ultimate selection of the monitor will be based solely on merit and qualifications. However, the Court remains skeptical about this assurance.
This skepticism is quite telling. O’Connor’s statement implies a fundamental disconnect between considering diversity in hiring and upholding merit-based principles. While it may not be overtly stated, it certainly suggests an underlying bias against diversity initiatives in hiring processes.
Despite the Government’s attempts to separate the Executive Order from the plea agreement, the Court remains unconvinced that the Government will choose a monitor without considering race-based factors, thus calling into question its commitment to nondiscriminatory practices.
Judge O’Connor’s disbelief raises an interesting point about how one could substantiate such a negative claim. There appears to be no consistent framework for meeting his newly established standard, other than ensuring that only straight white males are considered. If one believes that his opinion would differ had the DOJ presented a slate of candidates that included minorities without explicitly referencing “diversity” or “inclusion,” it reveals a troubling perspective on the issue.
Moreover, his stance on Boeing’s own diversity policies is equally critical, viewing them as exacerbating the situation:
Based on Boeing’s additional submissions and policies, the Court is concerned that the company may exercise its option to reject one of the Government’s monitor candidates in a manner influenced by racial considerations.
The most fundamental conservative argument against affirmative action is that it infringes on the freedom to contract. Advocates argue that private entities should have the right to hire exclusively based on their preferences, regardless of the implications. Judge O’Connor’s reasoning aligns with this perspective, asserting that employers are free to dictate the terms of employment, including the regulation of personal conduct.
However, the situation becomes complicated in this scenario, as Boeing, a sophisticated private corporation with skilled legal representation, cannot be trusted to honor a contract if there’s even a remote possibility that it might not select a white male for this role. It creates a paradox: while it’s deemed wrong to restrict a private company’s hiring practices to exclude straight white males, it is equally problematic to allow them the freedom to hire women or minorities if that is their choice.
It’s worth noting that Judge O’Connor could have simply rejected the plea deal as unjust to the victims and used a more straightforward rationale instead of concocting this convoluted interpretation of diversity and inclusion. This decision becomes all the more poignant in light of the families’ reactions:
Ike and Susan Riffel of California, who tragically lost their two sons Melvin and Bennett, expressed their sentiments regarding the judge’s ruling: “The judge did the right thing by rejecting this terrible plea deal. This agreement was merely a way for Boeing to escape accountability. It failed to hold anyone responsible for the deaths of 346 people and did nothing to ensure the safety of the flying public. We are relieved that Judge O’Connor made this decision, allowing us to seek true justice for our loved ones. This marks a significant step toward holding those accountable for the tragic loss of 346 lives.”
Will the eventual outcome lead to a more favorable resolution for the victims’ families? It’s challenging to foresee such an outcome, especially when the judge seems more focused on the monitor’s selection than on addressing the real deficiencies of the plea agreement.
It appears that his priorities may lean more toward generating headlines than genuinely seeking justice for the victims.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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