This story updates an earlier version that ran Aug. 15 to include plans for a US Supreme Court appeal. *
Airline safety continues to trouble the flying public, stemming lately from a court decision in June that keeps secret what Boeing told the FAA concerning fixes to MCAS flight control software after two fatal 737 MAX crashes killed 346 people nearly five years ago.
“The court decision endorsing FAA/Boeing secrecy in safety regulation of the 737 MAX clearly harms air safety,” said Paul Hudson, president of FlyersRight.org, via email on Tuesday to Fierce Electronics. “Boeing and the FAA are now immune from review by outside independent safety experts, can shield negligence, incompetence, conflicts and undue influence in safety decision making.”
*FlyersRights.org will appeal to the US Supreme Court, Hudson said.
Gregory Travis, an unpaid expert for FlyersRights.org, and also a pilot and retired software entrepreneur, has long questioned MCAS and its subsequent upgrades and said the FAA or Boeing need to explain what would happen to a 737 MAX plane in flight if the current MCAS system were to fail. “We don’t even know what the pilot should do if the red light turns on that says MCAS is not operating,” he said in an interview with Fierce. “Can we even trust government to keep us safe?”
After losing an appeal June 30 in the US Court of Appeals for the District of Columbia to seek communications between the FAA and Boeing over recertification of 737 MAX planes, FlyersRights.org has stepped up its pressure on the FAA. The organization asked in an August 10 letter shared with Fierce to meet with FAA technical experts because multiple independent technical safety experts “publicly expressed concerns with the 737 MAX and have technical questions that only the FAA is positioned to answer.”
The FAA said Tuesday it does not comment on litigation and did not respond to the latest FlyersRights.org request for a technical meeting. Instead, the FAA referred Fierce to its extensive work to reverse the grounding of the 737 MAX. and a 92-page preliminary summary of its findings in 2020.
Despite the FlyersRights concerns, the FAA, Boeing and many pilots deem the 737 MAX safe to fly and many airlines have the plane in service. “I can say categorically that the 737 MAX product is safe,” then-acting FAA administrator Bill Nolen told members of the US Senate Commerce Committee in March.
However, US Sen. Maria Cantwell, D-Washington, asked the FAA for transparency in oversight of aircraft manufacturers and their suppliers. “For us, it’s making in the certification process…that another MCAS isn’t projected as a part of the system and people don’t understand it,” she said at the time.
Boeing did not respond to a request for comment regarding the recent court decision but has repeatedly defended its upgrades to MCAS in the past.
In addition to concerns about the 737 MAX, FlyersRights.org has also complained as recently as August 10 in separate letters to the FAA with concerns about flight delays and cancellations, air traffic control personnel shortages, passenger seat sizes and near misses at US airports.
Court of Appeals decision
In its Court of Appeals decision on June 30 (case number 21-5257), three appeals judges affirmed a lower court decision preventing the Flyers Rights Education Fund from access to documents used by the FAA in recertifying 737 MAX planes. The court affirmed that FOIA access to documents is exempted by Congress if the information is “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”
The FAA had earlier found 100 documents related to the FOIA request but withheld or redacted most based on the congressional exemption. The June 30 ruling upholds that decision, keeping the information secret.
In 2021, Boeing entered into a deferred prosecution agreement with the Justice Department, winning immunity from criminal prosecution as part of a $2.5 billion payment to settle a 737 MAX fraud conspiracy charge related to the plane’s flawed design. Of that total, Boeing paid a $243 million fine, compensation to airlines of $1.77 billion (related to when planes were grounded for 20 months) and $500 million to crash victims. Boeing also paid $200 million to settle civil charges by the US SEC that it misled investors about the safety of the 737 MAX.
Families of victims of the crash sought to reopen or reject the 2021 deferred presecution agreement but in February, a US judge in Texas denied their claim, saying he did not have legal authority in the case despite Boeing’s “egregious criminal conduct.” US Judge Reed O’Connor said the victims of the crashes in 2018 and 2019 were legally “crime victims” subject to Boeing’s criminal conspiracy and said Congress had failed to vest the courts with more authority to take action.
Travis, the software expert for FlyersRights has repeatedly questioned how MCAS could ever have been implemented, once calling it “unfathomably incompetent.” MCAS (Manuevering Characteristics Augmentation System) was implicated in causing the two planes to nosedive, causing the deadly crashes, even as pilots made manual attempts to stop the dives. MCAS was intended at design to automatically correct the MAX from climbing into a stall, which experts had predicted could happen under MAX’s design with larger engines mounted on an original 737 fuselage, but moved higher and more forward due to engine size.
The software was written to detect the angle of attack in an unsafe climb from a single sensor, but should have been written to detect more than one angle-of-attack sensor to call for a reduction in altitude. Angle-of-attack sensors are unreliable because they can be knocked offline when hit by birds or subjected to rough weather, Travis said.
Boeing did upgrade MCAS after the planes were grounded to require inputs from two angle-of-attack sensors. Still, Travis is seeking more information, now kept secret, including how pilots would respond should MCAS not operate properly.
The June 30 appeals court decision “goes well beyond the FAA and air safety,” Hudson said. “In my view, it guts FOIA and negates its whole purpose to make government agency decisionmaking transparent and decision makers accountable…Under this decision all federal agencies and their regulated parties can now keep secret the details of their decisionmaking as well as all relevant information submitted to an agency, as well as the identify of their regulatory personnel.”
Government oversight of various regulated industries is called into question by the court’s ruling-- everything from food to pharmaceuticals to coal mines, Travis said.
Hudson believes congressional action is needed to reverse the court decision to restore FOIA and require mandatory disclosure of basic information in air safety decisions including flight test protocols and flight test results for the 2020 recertification and ungrounding of the MAX after two deadly crashes. He said there have been “many safety incidents” with the plane since 2020. Two such incident with the 737 MAX were presented to the Senate Commerce Committee in March.
Travis called the court’s decision “ridiculous,” partly because citizens and FlyersRights is not asking for trade secrets. Congress created FOIA, which took effect in 1967, but no one at the time foresaw that the exemptions from disclosures would cover rules written by the manufacturers themselves, he said. “Much of what the FAA regulates are written by the industry itself,” he noted. “The FAA is essentially acting as Boeing’s attorney and indemnifying it against claims.”
The FAA seems to be protecting Boeing from mistakes it made and not trade secrets, Travis argued. He said he understands that companies would not be open to regulation at all if they thought their comments would be made public, but called for a middle ground with greater protections for the flying public.
“I’m not at all a government-is-bad libertarian,” he added. “I don’t mean to erode trust in government. But we have a culture that seems to be careening into unaccountability, especially by people powerful and connected. The rest of us wear our seat belts, but the bigger the crime, the less accountability there is.”