The compliance monitor is supposed to ensure that “Boeing implements a program designed to prevent and detect violations of US fraud laws,” O’Connor wrote. Failing to retain a monitor would violate Boeing’s probation, but O’Connor said that Boeing wouldn’t actually have to comply with the monitor’s recommendations.
“[T]he 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,” O’Connor wrote.
O’Connor also rejected the deal on the grounds that “Boeing will have the opportunity to prevent the hiring of one of the six monitor candidates chosen by the Government,” and “the Government will select the independent monitor ‘in keeping with the Department’s commitment to diversity and inclusion.'”
Judge opposes diversity provision
O’Connor said that Boeing’s court briefs and its diversity policies suggest that “Boeing will exercise its strike of one of the Government’s six chosen monitor candidates in a discriminatory manner and with racial considerations.” O’Connor said he is also skeptical that the government will consider all possible monitors and choose one based solely on merit and talent.
“It seems fundamentally inconsistent for the Government to say ‘in keeping with the Department’s commitment to diversity and inclusion’ means that the Government will not consider race,” O’Connor wrote. “Otherwise, why would the Government represent to the Court in its briefing that the term ‘diversity’ in the plea agreement is ‘generally consistent’ with the 2021 Executive Order’s definition, which explicitly includes race? Indeed, the Government must adhere to this Executive Order, and, consequently, that definition of ‘diversity’ controls what is required by the plea agreement.”
“In a case of this magnitude, it is in the utmost interest of justice that the public is confident this monitor selection is done based solely on competency,” O’Connor also wrote. “The parties’ DEI [diversity, equity, and inclusion] efforts only serve to undermine this confidence in the Government and Boeing’s ethics and anti-fraud efforts.”
