Reed O’Connor
There are a lot of reasons to reject the plea deal hammered out between the Department of Justice and Boeing. The investigation into Boeing’s multiple 737 Max crashes — the apparent result of failings that occurred after it agreed to a deferred prosecution agreement in exchange for a pledge to clean up its act — set the stage for a damning trial that could’ve delivered huge awards for the victims’ families. But instead, the DOJ agreed to a $230-some-odd million fine and a pledge to allow an independent monitor keep Boeing in compliance. So a judge might have rejected this agreement as a disgraceful sweetheart deal.
But Judge Reed O’Connor is not a typical judge, so he rejected the deal because the parties agreed not to engage in discrimination when choosing the independent monitor.
The oft-reversed Republican judge has tried to strike down Obamacare (reversed), strike down other parts of Obamacare (reversed), strike down the Indian Child Welfare Act (reversed), invent a constitutional right for crybaby anti-vaxxers — and, well, you’re not going to believe this, but he got reversed. Now he’s hearing the Boeing case and settled upon the dumbest possible reason to reject the deal.
The plea agreement provides that the retention of an independent compliance monitor is a special condition of probation, meaning if Boeing fails to retain the monitor, it will violate its probation. But the plea agreement prohibits imposing as a condition of probation a requirement for Boeing to comply with the monitor’s anti-fraud recommendations. Additionally, the independent monitor is selected by and reports to the Government, not the Court. Moreover, Boeing will have the opportunity to prevent the hiring of one of the six monitor candidates chosen by the Government. And finally, the Government will select the independent monitor “in keeping with the Department’s commitment to diversity and inclusion.”
(Relevant language in bold)
Note that this agreement does not say that the DOJ will actually hire a diversity-enhancing candidate for this job or even that it will employ some sort of affirmative action policy. It’s just the standard boilerplate used by entities both public and private to say, “Hey, we’re not going to discriminate.”
By way of confirmation, one need look no further than the fact that — in living by this vague pledge — the Department of Justice includes a whole lot of white guys. Specifically, the DOJ is around 40% women and 67% white. But research is hard when you’re more interested in putting out a Townhall article than a considered legal opinion.
O’Connor notes that existing law prohibits discrimination ipso facto including these words in contract MUST signal something beyond the strictures of the law. This is not how agreements work in the real world, but let’s let him cook for a second.
Critically though, the plea agreement does not define the terms “diversity” and “inclusion.” For that, the Government directs the Court to a 2021 Executive Order to clarify the meaning of these terms. The stated purpose of this Executive Order was to “further advance equity within the Federal Government” and “cultivate a workforce that draws from the full diversity of the Nation.” The Executive Order defined “diversity” as “the practice of including the many communities, identities, races, ethnicities, backgrounds, abilities, cultures, and beliefs of the American people, including underserved communities.” Similarly, “‘inclusion’ means the recognition, appreciation, and use of the talents and skills of employees of all backgrounds.”
These quotes are taken from the general summary and definitions section of Executive Order 14035. O’Connor uses this language to give the impression that the federal government is willy-nilly stacking the workforce with women and minorities. But definitions hold little probative weight outside of their contextual usage, and the order commits the government to adhere to “merit system principles” first and foremost while vaguely promising to find strategies to increase diversity and inclusion.
It does not commit to race-based “hiring” except to the extent someone with a diverse background interviewing for the job that otherwise might not have ends up winning the position on the merits.
While the Government assures the Court that the Government will consider all possible monitors (i.e., all backgrounds, etc.) but will choose a monitor solely based on merit and talent, the Court is skeptical of this assertion.
This is just an astounding sentence. It rests on the premise that there’s a fundamental disconnect between considering women and minorities for a job and merit. It’s not the quiet part out loud, but it’s certainly the quiet part pushed to a distractingly loud whisper.
Despite the Government’s efforts to divorce the Executive Order from the plea agreement, the Court is not convinced in light of the foregoing that the Government will not choose a monitor without race-based considerations and thus will not act in a nondiscriminatory manner.
He’s not convinced that they will not. Stop for a second and consider how one proves this negative. There’s no consistent method of complying with his new standard other than making sure only straight white dudes are considered. Because if you think this opinion would be different if the DOJ showed up with a bunch of minority candidates but had just avoided ever saying “diversity” or “inclusion” out loud… you must have a lot of trouble with the wallet inspector.
And he’s not happy about Boeing’s generic diversity policies either and cites them as a compounding feature:
Accordingly, based on Boeing’s supplemental briefing and its policies, the Court is concerned Boeing will exercise its strike of one of the Government’s six chosen monitor candidates in a discriminatory manner and with racial considerations.
The purest conservative argument against affirmative action is that it impairs freedom to contract. If a private party wants to hire only white people — the Goldwater-Reagan foot soldiers argued — that may be unfortunate, but it’s their right as Americans! In fact, Judge O’Connor sees it this way when an employer discriminates against LGBTQ+ employees because employers are free “to regulate the sexual conduct of their employees… including sodomy, premarital sex, adultery, and any other kind of sexual activity that occurs outside the context of a marriage between a man and a woman.”
But in this case, the contractual artifice crumbles. Boeing, as a sophisticated private entity represented by competent counsel, cannot be trusted to enter a contract if there’s any chance that it might not hire a white guy to do this job. It’s an inescapable loop: it’s wrong to stop private companies from hiring straight white guys if that’s what they want… but also it’s wrong to allow companies the freedom to hire a women or minority if that’s what they want.
Remember, he could’ve gotten the same result by rejecting the deal as unfair to the victims and instead contrived this strained reading of diversity and inclusion. Which makes statements from the families so much more tragic:
Ike and Susan Riffel of California who lost their two sons Melvin and Bennett, reacted to the judge’s opinion: “The judge did the right thing throwing this terrible plea deal out. This plea deal was nothing more than a get out of jail free card for Boeing. This deal didn’t hold anyone accountable for the deaths of 346 people and did nothing to protect the flying public. I’m very happy with Judge O’Connor’s decision and now we can move forward with real justice for our loved ones. This is another step forward in holding the people accountable for the deaths of 346 people.”
Will the ultimate deal result in a better outcome for the victims’ families? Hard to imagine when he couldn’t be bothered to make these deficiencies a feature of this order. He seems entirely on board with the woefully insufficient award as long as the monitor isn’t a diversity hire.
Almost like he doesn’t care about the victims as much as he cares about generating a headline…
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.