Why It's Unlikely the FAA Will Be Sued for the 737 MAX

The first of several Congressional hearings into the safety of the Boeing 737 MAX, held last week, centered on the relationship between the Federal Aviation Administration and Boeing. Concern that the crash of Ethiopian Airlines flight 302 might be connected to a software problem discovered in the investigation into the Lion Air Flight 610 disaster forced the grounding of Boeing's latest airliner.

With many fingers pointing at the FAA's apparent lax oversight of Boeing during the MAX's certification, senators want to know if allowing Boeing employees to serve as FAA designees in order to self-certify is the equivalent of putting the fox in charge of the henhouse, as Senator Richard Blumenthal suggested.

"Confidence in the FAA as the gold standard for safety has been shaken," Calvin Scovel, inspector general for the Department of Transportation, told the members of the Senate Subcommittee on Aviation and Space. Scovel has been charged by Congress with conducting his own investigation, in addition to the half dozen other government probes already underway. But regardless of what Scovel or anyone else's investigation uncovers, it will be difficult for people harmed by the MAX disasters to sue the FAA.

Reports in the Seattle Post-Intelligencer, the Wall Street Journal and the New York Times claimed that in its rush to get the 737 MAX to market, Boeing made several design changes including adding a stall protection system — the Maneuvering Characteristic Augmentation System or MCAS — that is now at the center of both accident probes. The FAA gave Boeing authority to certify MCAS as safe.

It is possible to sue the US government under the Federal Tort Claims Act enacted in 1946, but only within a narrow frame because government decisions, even bad decisions, are protected, lawyers explain. That protection was unanimously upheld by the US Supreme Court three decades ago following the crash of a Brazilian airliner in 1973.

At the end of a flight from Rio de Janeiro to Paris, a Varig Boeing 707 made an emergency landing in a field as it approached Orly airport. A cigarette had burned through the lavatory trash can and black smoke was billowing through the passenger cabin, asphyxiating many passengers before the airplane was even on the ground. 123 people died. Varig sued the FAA because, by law, the trash bin should have contained the fire. The FAA certified the jetliner even though the airplane failed to meet that requirement.

When the Supreme Court heard the case, all nine justices agreed that the burden falls on the regulated, in this case Boeing, to follow the law. When the FAA decides what it will and will not inspect, it is "exercising discretionary regulatory authority of the most basic kind," the high court ruled.

The case is applicable to the decisions made during the certification of the 737 MAX, said Mark Dombroff, an aviation lawyer with the Washington firm LeClair Ryan who defended the FAA at the time as a lawyer with the Department of Justice.

The FAA's decisions, whether good or bad, are within the scope of its responsibility, Dombroff said: "Regulators and the government have to be free to exercise their discretion free from the threat of liability." The alternative, he suggested, would result in judges second-guessing the policy judgments of government professionals, and "would wreak chaos in the system."

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One exception is when workers fail to do as they should. If employees under the control of the FAA deviate from policy, a lawsuit might be permitted.

Mike Danko, an aviation lawyer with Danko Meredith in Redwood City, California, writes in the Aviation Law Monitor that a 2005 court of appeals case could open a path to a suit against the FAA's use of Boeing employees as proxies.

"While the government has discretion to decide how to carry out its responsibility," the decision reads, "it does not have discretion to abdicate its responsibility in this regard. When it does so, the discretionary function exception cannot shield the government."

Brian Alexander, a plaintiff's lawyer with Kreindler & Kreindler in New York who has successfully sued the federal government in the past, said the families of anyone killed in the 737 MAX crashes, or others harmed by what has happened since, might not want to go after the FAA.

"At the start, middle and end, regardless of the role the FAA played, Boeing, Boeing and Boeing is responsible for the safety of the airplane," said Alexander.

"While there absolutely should be an investigation of the relationship and the specific roles played by manufacturers' representing the FAA, and there should be an investigation into the FAA oversight, those issues are handled better by our legislative branch," he said.

At the Senate hearing, politicians were lobbing questions at America's two top aviation officials, FAA acting administrator Daniel Elwell and National Transportation Safety Board chairman Robert Sumwalt, as well as DOT Inspector General Scovel. But before the testimony ended, two lawmakers were already considering legislation.

Senator Ed Markey said he would like to see laws to prohibit airplane manufacturers from selling critical safety features as "extras," and Senator Richard Blumenthal said he would work on a law targeting the FAA practice of delegating safety oversight to manufacturers.

Whether this is a promising sign, as Alexander suggested, or the chaos predicted by Dombroff remains to be seen.