Grounded: How the 737 MAX Crashes Highlight Issues with FAA Delegation and a Potential Remedy in the Federal Tort Claims Act

Authors

Drew H. Nunn, Southern Methodist University, Dedman School of LawFollow

Abstract

The over-delegation by the Federal Aviation Administration (FAA) of new aircraft design certification authority to the very companies seeking such certification has led to a stunning lack of oversight and bending to private economic interests. Congressional action must be taken to ensure that aircraft certification authority, if delegated to private entities, is not delegated to any entities with ties to the companies seeking certification, and FAA oversight must be tightened.

This Comment analyzes whether the Federal Tort Claims Act could provide a potential avenue for plaintiffs to challenge the FAA as it relates to its oversight and delegation to The Boeing Company (Boeing). In the face of inaction from the FAA, Boeing, and Congress, the judiciary provides the best hope for holding the FAA accountable when it delegates authority to private industry leaders like Boeing. It is likely well within the FAA’s discretion to determine that the engineers at Boeing to whom Boeing would assign to this task are qualified in their engineering capabilities. However, if the FAA knew that economic pressures and factors outside of plane safety were guiding Boeing executives’ directions to its inspecting engineers, it may have delegated its certification authority to unqualified individuals, which it cannot do.

Recommended Citation

Drew H. Nunn, Grounded: How the 737 MAX Crashes Highlight Issues with FAA Delegation and a Potential Remedy in the Federal Tort Claims Act, 85 J. Air L. & Com. 703 (2020)