DC Circuit is Considering Issuance of an Emergency Order to Re-Ground the Boeing 737 MAX Aircraft

By Roy Goldberg

After two foreign-territory crashes and a resulting 21-month-plus forced grounding, the Boeing 737 MAX returned to the U.S. skies on December 29, 2020, which followed authorization from the Federal Aviation Administration (FAA) on November 18. The Airworthiness Directive issued by the FAA for resumption of MAX service spells out the requirements that must be met before U.S. carriers can fly the planes, including installation of software enhancements, completion of wire separation modifications, conduct of pilot training, and the accomplishment of thorough de-preservation activities that will ensure the airplanes are ready for service. 

But just as the 737 MAX is returning to service, Boeing and the FAA face an aggressive effort by a non-profit passenger organization seeking to reground the 737 MAX for another year while the organization’s newly-filed legal challenge to the FAA authorization is considered by the U.S. Court of Appeals for the DC Circuit. The demand to halt use of the 737 MAX during the legal challenge to the FAA re-authorization faces considerable obstacles, especially given the high amount of deference that courts give to safety determinations made by the FAA. However, the fate of the 737 MAX will remain “up in the air” at least until the DC Circuit – presumably in January – rules on the pending emergency motion to stay the FAA’s allowance of the jet to operate in the United States. 

The outcome of the pending emergency motion will impact not only Boeing, the FAA, the airlines that operate the 737 MAX, and their passengers, but also more generally the ability of the FAA to regulate the airline industry without unprecedented supervision by the judicial system. 

The Legal Challenge to FAA Re-Authorization of the 737 MAX and Emergency Motion to Stay

On December 3, 2020, Flyers Rights Education Fund, Inc. and some of its individual members filed a petition for review with the DC Circuit, challenging the FAA’s decision to allow the aircraft to return to service. Twenty days later, on December 23, 2020, Flyers Rights filed an emergency motion to stay the effectiveness of the FAA decision until after the DC Circuit rules on the merits of the legal challenge. The court has ordered the FAA to respond by January 6, and Flyers Rights to file a reply brief by January 8. So it is possible that the court could preliminarily enjoin the ability of U.S. airlines to operate the 737 MAX until after the DC Circuit case is resolved. 

In support of its stay motion, Flyers Rights alleges that: (1) the FAA has improperly refused to disclose the evidence on which it predicated its determination that the redesigned aircraft is safe, and (2) absent injunctive relief the organizations’ members will be irreparably injured because the 737 MAX aircraft may crash with them aboard. Flyers Rights asserts that the “individual petitioners are fearful for their lives and safety because, although the FAA has approved design and software changes the agency says now make the plane safe to fly, the agency has withheld from the public record the actual procedures it used to test these changes for safety and in flight, and the actual results of those tests.” According to Flyers Rights, “[i]ndependent experts have determined that without such information, it is impossible to determine if there is an adequate factual basis for the FAA’s decision to allow the plane to fly again.”

The new litigation is tied to a lawsuit filed by Flyers Rights in 2019 to compel the FAA to disclose information relating to the 737 MAX under the Freedom of Information Act (FOIA). Flyers Rights claims that the FAA “has, for more than a year, resisted producing this information, withholding it under Exemption 4 of FOIA (confidential commercial information),” and that “[c]ross-motions for summary judgment on that issue are pending before the District Court” for the District of Columbia. 

According to Flyers Rights, their experts in support of the emergency motion before the DC Circuit are concerned that: (1) although the FAA claims that it is necessary to retain the “Maneuvering Characteristics Augmentation System” (MCAS) on the MAX (to improve pilot handling when the nose goes up too much), it also maintains that the aircraft can be operated safely without MCAS operating (since it supposedly will be automatically deactivated if the signals for its activation disagree, indicating they’re unreliable); (2) the FAA’s conclusion that the MAX can be flown safely without MCAS operable is unsupported; and (3) a crucial defect that contributed to the crashes was an erroneous signal from a single failed angle of attack sensor, triggering activation of the MCAS in a situation in which it should not have been turned on. But what if MCAS is de-activated in a situation in which it should actually be turned on because one of the two sensors was off? There is an algorithm that picks a middle value. Does it work? The FAA claims that it tested the system, but according to Flyers Rights, the FAA did not disclose the facts regarding how such a test was conducted or what were the specific results.

Flyers Rights also claims that a stay by the DC Circuit is warranted because the “FAA will suffer no harm as its highest priority should be ensuring passenger safety,” and that, although “Boeing may suffer some financial loss from delay in ungrounding,” the airlines who operate the 737 MAX “will not suffer from any delay” because of the downturn in airline travel caused by the COVID-19 pandemic. 

Extensive Deference Afforded the FAA on Aircraft Safety Issues

If the DC Circuit denies the emergency motion for a stay, it may be because of the considerable deference that the courts give to the FAA on aircraft safety determinations. See, e.g., Schwartz v. Helms, 712 F.2d 633, 638 (DC Cir. 1983) (“the question before us is clearly one which calls particularly upon the agency’s expertise. It poses technical questions both of fact—on the evaluation of complex scientific and medical evidence on the risks posed by coronary heart disease—and of policy—on the degree of risk of heart attack which may be tolerated among air pilots consistent with air traffic safety. When questions such as these are presented to us, we should be particularly hesitant in reversing the agency’s determinations”); Professional Pilots Federation v. FAA, 118 F.3d 758 (DC Cir. 1997) (granting deference to and affirming the FAA decision not to institute rulemaking to relax requirement that commercial airline pilots retire at age 60); Public Citizen, Inc. v. FAA, 988 F.2d 186 (DC Cir. 1993) (deferring to rules adopted by the FAA for minimum aviation security personnel training requirements and staffing levels). 

Flyers Rights acknowledges that, “FAA may contend that given the agency’s technical expertise, its finding that successful tests and analyses were conducted should simply be accepted at face value...” But Flyers Rights asserts that a report released recently by the U.S. Senate Committee on Commerce, Science and Transportation revealed, based on information from a whistleblower, that in a crucial test of pilot reaction time—how quickly they would react to a certain kind of mistaken MCAS activation—Boeing officials were present for the testing and tipped off the test pilots in advance. Senate Commerce Committee, Committee Investigation Report, Aviation Safety Oversight 44-45 (Dec. 18, 2020).

However, this assertion is the legal equivalent of a Hail Mary pass attempt. Even if a whistleblower alleged that test pilots improperly received coaching before operating the MAX controls, that does not establish a basis for concluding that the FAA failed to take its safety obligations seriously when it approved resumption of MAX service. 

Alleged FAA Reliance on Business Confidential Information from Boeing

Flyers Rights also asserts that the FAA re-authorization process is flawed because the FAA has not released to the public all of the information on which its safety assessment was based. This allegedly includes business confidential information of Boeing. Flyers Rights claims that the court “will not uphold the FAA’s action when the agency has relied on information that it refuses to disclose because the information is supposedly proprietary,” and as support cites its own prior litigation: FlyersRights Education Fund, Inc., v. FAA, 864 F.3d 738 (DC Cir. 2017). However, the 2017 case is not particularly relevant to the new matter. The 2017 litigation involved a failed attempt by Flyers’ Rights to require the FAA to issue a rule which prohibited the further reduction in commercial airline seats and legroom. FlyersRights “challenged the FAA’s refusal to engage in rulemaking on airplane seating, arguing that the shrinking space between airline seat rows, coupled with an increase in average passenger size, created a safety risk by making it harder for passengers to get out in an emergency. In rejecting the request for rulemaking, the FAA claimed that emergency evacuation tests had been successfully conducted in planes with the smaller seat dimensions. But the agency refused to disclose the actual tests, claiming they were proprietary.”

The DC Circuit granted the prior petition for review in part, holding that the FAA had “relied on undisclosed tests using unknown parameters,” 864 F.3d at 741 and that the agency simply could not rely on tests that it insisted on withholding from the public record. The court stated that it could not “affirm the sufficiency of what [it] cannot see,” and that “[w]hatever deference” the court generally accords to administrative agencies, it would “not defer to a declaration of fact that is ‘capable of exact proof’ but is unsupported by any evidence.’” Id. at 746-47.

The 2017 Flyers Rights case seems readily distinguishable from the current litigation. To begin with, it is not accurate that the FAA possesses no evidence to support its safety determination for the re-engineered MAX 737. There is abundant evidence that the FAA has placed on the record to support its findings. Second, in the 2017 case the record unambiguously showed that the FAA had neglected to consider a highly relevant fact: namely, that over the past several years the average size of U.S. airline passengers has increased, which means that prior studies about whether seat size and pitch allowed for egress in an emergency situation were too stale to be reliable.  By contrast, Flyers Rights has not pointed to any specific countervailing facts which would call into doubt the reliability of the FAA’s determination that the 737 MAX is now safe. Also, the court, in granting “Flyers Rights’ petition for review in part, and remanding to the [FAA] for a properly reasoned disposition of the petition’s safety concerns about the adverse impact of decreased seat dimensions and increased passenger size on aircraft emergency egress,” did not in any manner enjoin the conduct of the airlines during or after the case was considered.

The remedy of forcing the 737 MAX out of U.S. skies while the DC Circuit receives, considers, and analyzes the parties’ legal briefs on the merits of Flyers Rights’ challenge, and holds oral argument and reaches a decision, is one not at all likely to be ordered by the court. Nevertheless, the chance remains, and this all adds yet another layer of uncertainty to the ongoing saga of the 737 MAX. 

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