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crime victims

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.

Paul Cassell | 3.31.2026 2:22 PM

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........

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