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

Apr 1, 2019

This post contains references to products from one or more of our advertisers. We may receive compensation when you click on links to those products. Terms apply to the offers listed on this page. For an explanation of our Advertising Policy, visit this page.

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.

WASHINGTON, March 27, 2019 -- Daniel Elwell L, acting administrator of the U.S. Federal Aviation Administration, Robert Sumwalt C, Chairman of the U.S. National Transportation Safety Board (NTSB), and Calvin Scovel, the U.S. Transportation Department's inspector general, attend a Senate Commerce Committee hearing on airline safety in Washington D.C., the United States, on March 27, 2019. The U.S. Federal Aviation Administration (FAA) on Wednesday vowed to revamp its air safety oversight after two deadly crashes involving Boeing 737 Max jets in less than five months pointed to possible lapses in the aircraft approval process. (Xinhua/Liu Jie) (Xinhua/ via Getty Images)
Daniel Elwell, acting administrator of the FAA, Robert Sumwalt, Chairman of the National Transportation Safety Board, and Calvin Scovel, the Transportation Department’s inspector general, at the Senate Commerce Committee hearing on airline safety on March 27 (Photo by Xinhua/via Getty Images)

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.”

Southwest Airlines Boeing 737 MAX aircraft are parked on the tarmac after being grounded, at the Southern California Logistics Airport in Victorville, California, March 28, 2019 (Photo by MARK RALSTON/AFP/Getty Images)

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.

MIAMI, FL - MARCH 14: Two grounded American Airlines Boeing 737 Max 8 are seen parked at Miami International Airport on March 14, 2019 in Miami, Florida. The Federal Aviation Administration grounded the entire United States Boeing 737 Max fleet. (Photo by Joe Raedle/Getty Images)
Two grounded American Airlines Boeing 737 MAX 8 parked at Miami International Airport on March 14, 2019 (Photo by Joe Raedle/Getty Images)

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.

Featured image of Boeing 737s outside the company’s factory in Renton, Washington, in March by Stephen Brashear/Getty Images

Chase Sapphire Preferred® Card

WELCOME OFFER: 80,000 Points


CARD HIGHLIGHTS: 2X points on all travel and dining, points transferrable to over a dozen travel partners

*Bonus value is an estimated value calculated by TPG and not the card issuer. View our latest valuations here.

Apply Now
More Things to Know
  • Earn 80,000 bonus points after you spend $4,000 on purchases in the first 3 months from account opening. That's $1,000 when you redeem through Chase Ultimate Rewards®. Plus earn up to $50 in statement credits towards grocery store purchases within your first year of account opening.
  • Earn 2X points on dining including eligible delivery services, takeout and dining out and travel. Plus, earn 1 point per dollar spent on all other purchases.
  • Get 25% more value when you redeem for airfare, hotels, car rentals and cruises through Chase Ultimate Rewards®. For example, 80,000 points are worth $1,000 toward travel.
  • With Pay Yourself Back℠, your points are worth 25% more during the current offer when you redeem them for statement credits against existing purchases in select, rotating categories.
  • Get unlimited deliveries with a $0 delivery fee and reduced service fees on eligible orders over $12 for a minimum of one year with DashPass, DoorDash's subscription service. Activate by 12/31/21.
  • Count on Trip Cancellation/Interruption Insurance, Auto Rental Collision Damage Waiver, Lost Luggage Insurance and more.
  • Get up to $60 back on an eligible Peloton Digital or All-Access Membership through 12/31/2021, and get full access to their workout library through the Peloton app, including cardio, running, strength, yoga, and more. Take classes using a phone, tablet, or TV. No fitness equipment is required.
Regular APR
15.99%-22.99% Variable
Annual Fee
Balance Transfer Fee
Either $5 or 5% of the amount of each transfer, whichever is greater.
Recommended Credit

Editorial Disclaimer: Opinions expressed here are the author’s alone, not those of any bank, credit card issuer, airlines or hotel chain, and have not been reviewed, approved or otherwise endorsed by any of these entities.

Disclaimer: The responses below are not provided or commissioned by the bank advertiser. Responses have not been reviewed, approved or otherwise endorsed by the bank advertiser. It is not the bank advertiser’s responsibility to ensure all posts and/or questions are answered.