Reed O’Connor, a United States district judge of the US District Court for the Northern District of Texas, has ordered 
Boeing
and the Department of Justice (DOJ) to provide documents and briefings explaining certain diversity, equity, and inclusion (DEI) policies that were – and not – related to Boeing’s plea deal with the DOJ.
Picking a compliance monitor
O’Connor’s order came in a court filing on October 15, which read that following a hearing that included Boeing, the DOJ, representing the US government, and representatives of the victims’ families of the two fatal Boeing 737 MAX crashes on October 11, the families have opposed that the DOJ would select an independent monitor to oversee the manufacturers operations during a three-year probation period.
“Among other reasons, the victims argue the Court should reject the Agreement because it allows the Government, not the Court, to select a monitor with input from Boeing and “in keeping with the Department’s commitment to diversity and inclusion” […].”
According to O’Connor, the DOJ explained that it established this policy position in 2021 and takes it into account when assessing the totality of an application for a particular person or monitor team.
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When asked about what this meant in practice, the Department said that it does not entail selecting someone less qualified but instead means that it accepts candidates from “all over the country or elsewhere.”
The court filing detailed how O’Connor kept pressing the DOJ about its DEI policies, asking the Department to define the words diversity – referring to race, gender, background, and other factors – and inclusion – “not excluding people because of any characteristic that would be included in diversity.”
However, the DOJ’s attorney told O’Connor they could not describe the provision’s application in this case since they would not be on the committee applying it.
When the judge questioned Boeing about the DOJ’s policy, the company’s representative told O’Connor that the Department would use that policy to select potential compliance monitor candidates, adding that it was confident the DOJ would make the right choice.
“Critically, Boeing did not voice any objection to this provision.”
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Part of Boeing’s plea deal
As a result, O’Connor ordered the DOJ to provide the court with the specific policy it referred to during the October 11 hearing and in the plea agreement, define the terms diversity and inclusion, and provide an explanation of how the provision furthers compliance and ethics efforts.
The Department will also have to explain how it will use its DEI policies when selecting an independent compliance monitor to oversee Boeing.
Boeing will have to explain how it understands the provision’s requirements, how DEI policies are used in its current compliance and ethics efforts, and how the company will use DEI principles when it provides its input as the DOJ chooses the independent monitor.
Photo: Marco Menezes | Shutterstock
O’Connor provided both parties time until October 25, becoming the latest twist in Boeing’s effort to reach a plea deal with the DOJ.
The two agreed on the final terms of a plea deal on July 24, which included a $487.2 million fine (half of which was credited as already paid), allowing the court to determine the restitution for the victims’ families, and a three-year probation period served by Boeing, with the latter including an independent compliance monitor.
According to the plea deal’s terms, the DOJ would select the independent compliance monitor via a public selection process, with the monitor overseeing the aircraft manufacturer for three years. They would also have to provide annual reports to the DOJ.
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Breaching its January 2021 agreement
On May 14, the DOJ wrote a letter to O’Connor, which essentially opened up a case that was closed when the Department and Boeing finalized the terms of their deferred prosecution agreement (DPA) in January 2021.
In the letter, the DOJ stated that Boeing had breached its DPA obligations, namely to design, implement, and enforce a compliance and ethics program to prevent and detect potential fraud in its operations.
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The DOJ and Boeing have asked the court to accept the plea agreement consistent with standard practice of the United States Government.
George W. Bush, the 43rd president of the US, appointed O’Connor to become a judge of the District Court for the Northern District of Texas in 2007.
A 2018 New York Times article lede described O’Connor as a Republican favorite who has reliably tossed out “Democratic policies they have challenged.” This included the Affordable Care Act, which has significantly expanded healthcare coverage for American citizens since it was signed into law in 2010.
In June, JD Vance, the current Republican candidate for Vice President of the US, introduced the ‘Dismantle DEI Act of 2024’ in the US Senate, becoming another example of how Republicans have been trying to use the term to scaremonger voters during an election season.
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According to the US Congress, the bill was passed to the Committee on Homeland Security and Governmental Affairs. The bill’s goal was to,
“[…] ensure equal protection of the law, to prevent racism in the Federal Government, and for other purposes.”
In June, Michael Cloud, a Republican legislator from Texas, introduced a related bill in the US House. Neither have passed their respective legislative chambers.
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