Gavin McIntyre/The Post And Courier via AP
Boeing employees open the tail of a Boeing Dreamlifter on their campus in North Charleston, South Carolina, May 30, 2023.
Sections 47 and 48 of a 787 Boeing Dreamliner fuselage consist of the back four rows of the plane’s passenger seating, bathrooms, meal prep area, flight attendant seating, and rear exit doors. “Not the kind of thing you could sneak out on the back of a pickup truck,” says Rob Turkewitz, an attorney who represents the estate of John Barnett, the whistleblower who was found dead last month the morning he’d been scheduled to finish a deposition in his whistleblower lawsuit against the company. And yet around 2015, someone caused a massive hunk of this fuselage to vanish from the Material Review Segregation Area (MRSA) of the Charleston, South Carolina, 787 assembly plant, without leaving any kind of paper trail. As near as Turkewitz and his former client have been able to figure, no one ever determined what became of the thing.
MRSA was supposed to be a sanatorium of sorts for malfunctioning airplane parts. Damaged, defective, or otherwise “nonconforming” parts were sent there to be tagged, logged, and painted red, so that no one would confuse them for parts that could be installed on an aircraft. MRSA was also understood as a kind of sanatorium of defective personnel, where blacklisted quality managers like Barnett were sent as punishment, because it felt more like an inventory management job than the awe-inspiring enterprise of building an airplane.
But Barnett quickly realized that MRSA was an extremely central part of another kind of enterprise at Boeing South Carolina: the mad dash for parts to install on airplanes that managers were under pressure to get out the door as quickly as possible.
Barnett, known as “Swampy” among friends, had previously clashed with bosses who wanted him to allow mechanics to sign off on their own installation work without properly documenting the procedures in Boeing’s official Velocity system. This was not only unsafe and shortsighted, it was potentially felonious under Section 38 of the United States criminal code, which made “any materially false writing, entry, certification, document, record, data plate, label, or electronic communication concerning any aircraft or space vehicle part” a crime punishable by up to 15 years in prison if it is determined that the act compromised the safety of the airplane. Mechanics had been scheming to save time by skipping what they saw as unnecessary paperwork. “This sounds great, but we’ve got to make sure that the processes are changed to support what y’all want to do,” he said carefully, explaining that the Federal Aviation Administration needed to sign off on any procedural changes, and that as far as the agency was concerned, “the paperwork is just as important as the aircraft.” The whole room had burst out laughing.
Forcing employees to constantly break the law required Boeing to foster a peculiar culture. Ignorance was one of its main tenets.
Now he knew why. He asked security for an audit of how many keys it had made of the MRSA parts cage, and discovered there were hundreds of keys floating around. Every one of those mechanics’ bosses had been illegally raiding the cage for defective parts to install on new airplanes, without documentation. They then lobbied the quality bosses to pressure Barnett’s colleagues to falsify or “pencil whip” documents about the parts that had gone missing. Barnett himself had been instructed to “pencil whip” investigations on no fewer than 420 missing nonconforming parts.
Disinclined to commit any felonies on behalf of the bosses who’d spent the past six years terrorizing him, Barnett sent a couple of inspectors out to the assembly lines. Lo and behold, they found dozens of red-painted defective parts installed on planes. But there were no signs anywhere of the missing 47-48 section, or hundreds of other parts that had gone missing from MRSA. “You know, we really need to find all these … lost nonconforming parts,” he remarked at his next big meeting, hoping that with 12 managers present it would be harder to blow him off. “And if we can’t find them, any that we can’t find, we need to report it to the FAA.”
No one burst out laughing, but it wasn’t because they were taking him seriously.
“We’re not going to report anything to the FAA,” a supervisor declared emphatically.
WE ARE OFTEN TOLD THAT THE PROBLEM with corporate crime is that the laws aren’t explicit enough, or that there simply aren’t enough of them, to convince a jury to prosecute high-level executives. This is generally a massive cop-out, a distraction to justify a permanent state of impunity granted to corporate malefactors. But in aviation, it is literally the opposite of the truth.
Whistleblower laws exist to protect Swampy Barnett and other employees who point out systemic abuses and can testify to the crimes committed. Those laws are mostly uniform across industries, except in aviation. There, a 2000 law called AIR 21 creates such byzantine procedures, locates adjudication power in such an outgunned federal agency, and gives whistleblowers such a narrow chance of success that it effectively immunizes airplane manufacturers, of which there is one in the United States, from suffering any legal repercussions from the testimony of their own workers.
Very few aviation industry employees even know about AIR 21; Barnett, despite an encyclopedic knowledge of most aviation regulations, had never heard of it until he was well on his way out. Other whistleblowers, including Sam Salehpour, the 787 quality engineer who told Congress earlier this month about his concerns with the Dreamliner, are coming forward. But unless AIR 21 is reformed, their complaints are likely to fall into the same graveyard that’s visible in any careful study of the South Carolina court dockets.
Before his death, Barnett testified that he was asked to break the law at least once or twice a week during his six years at Boeing South Carolina, but that may have been an understatement. Almost nothing Barnett saw during his tenure at the plant conformed with Boeing policy as he’d been trained to enforce it, he said in a deposition just a month ago.
Tall stacks of laws, both civil and criminal, govern the aviation industry: Section 38 of the United States criminal code, the Federal Aviation Administration charter, and the production certificate that required all commercial airplane manufacturers to maintain a detailed record of the build and maintenance of each plane in a quality management system called AS9100. “If you violate a Boeing Process Inspection,” Barnett explained in the deposition, “they’re so intermingled, that chances are you’re violating four or five of those. And by violating those, you’re violating AS9100, and you’re also violating the FAA requirements.”
As the deposition makes clear, forcing employees to constantly break the law required Boeing to foster a peculiar culture. Ignorance was one of its main tenets: Barnett described his superiors marching over to his office in packs of five, arms folded across their chests, demanding he show them the precise sections of the Boeing process protocols and FAA production certificate they were violating. One boss walked around the production floor snapping pictures of flags on parts and calling him to inquire whether or not they conformed, solely to harass him; one day, he counted 29 calls. Another boss regularly gave him assignments, then reassigned his inspectors after he left for the day so his team would chronically blow deadlines.
Kevin Wolf/AP Photo
Boeing quality engineer Sam Salehpour takes his seat before testifying at a Senate Homeland Security and Governmental Affairs subcommittee hearing to examine Boeing’s broken safety culture, April 17, 2024, in Washington.
Objectively, Barnett knew none of it was personal. During one dismal performance review, his boss actually broke down and admitted he’d been ordered to give him a failing grade by a higher-up he barely knew. Later, Barnett saw an email assessment of him written by another boss with whom he’d had only limited interactions. While Barnett was “technically, one of the best,” the email concluded: “In a candid way, BSC quality leadership would give hugs and high fives all around at his departure.” The pariah treatment took a toll on Swampy’s psyche: “Why me? Why am I being singled out?” he recalled asking colleagues during the deposition.
But he wasn’t alone. Once, a human resources officer asked him to look over a “weak” performance improvement plan the company had used to terminate William Hobek, another quality manager who had refused to “pencil whip” the lost section 47-48. The HR officer confided that he’d been feeling uneasy about the justifications corporate was using for the firing. A fellow quality manager named Cynthia Kitchens, whose career had reached a similar dead end, confided in Barnett that she’d been in the Boeing doghouse ever since she’d filed an ethics report on a manager named Elton Wright, after he shoved her against a wall and yelled that Boeing was “a good ol’ boys’ club and you need to get on board” when she balked at corner-cutting he wanted her to endorse. A quality engineer named John Woods had been terminated for refusing to rubber-stamp an abridged protocol for repairing the plane’s carbon fiber fuselage that he believed violated FAA regulations. (The FAA ultimately backed Woods up on that.)
Sadly, Barnett was not alive to watch the congressional testimony of Salehpour, who voiced grave concerns about the structural integrity of those same carbon fiber fuselages, due to the very corner-cutting practices Woods had called out. Just like Barnett, Salehpour’s boss had called him constantly to harangue him for being too honest, and his superiors went to great lengths to prevent him from communicating with colleagues who they suspected might concur with his conclusions. Appearing before the Senate Permanent Subcommittee on Investigations, Salehpour described an unsettling evening when his brand new tire began to flatten on the drive home. When he pulled over at a body shop, a mechanic discovered a nail. Just so you know, the mechanic told him, you didn’t run over this nail; it’s not an accident.
Notably, Boeing bosses gave nearly identical treatment to two safety-conscious 787 engineers who worked in the Organization Designation Authorization program, in which Boeing engineers perform most of the more technical aspects of regulating Boeing on behalf of the FAA, which is supposed to act as those engineers’ direct boss. But after two ODAs insisted Boeing comply with new agency guidance regarding the plane’s onboard computer networks, a manager gave both dismal performance reviews, while admitting that the order to do so came from higher-ups, who were angry that complying with the laws had delayed aircraft deliveries. When their union filed a formal complaint documenting the retaliation, Boeing threw it out on the grounds that the reviews didn’t meet the company’s threshold for retaliation.
In other words, Boeing wasn’t just retaliating against its own employees, but the de facto employees of its own regulator.
AS WE’VE EXPLAINED BEFORE IN THESE PAGES, a functional Department of Justice could easily rein in Boeing’s culture of lawlessness, but as yet no attorney general has appeared interested in doing any such thing. Bill Barr was appointed to the attorney general post about a month before the second fatal 737 MAX crash, from a senior post in the litigation department of Boeing’s criminal defense firm Kirkland & Ellis. He formally recused himself from the investigation but oversaw a department that transferred the case to an inexperienced Texas prosecutor who left the agency for a partnership at Kirkland & Ellis shortly after granting the manufacturer one of the most corrupt sweetheart “deferred prosecution” deals of all time.
Despite a compelling lawsuit filed by the families of 15 MAX victims alleging that the deferred prosecution agreement was illegal under the Victims’ Rights Act, Barr’s successor Merrick Garland has shown no desire to reopen the investigation, even arguing that the families did not qualify as “victims” of Boeing’s fraud because only the FAA had been truly victimized. In March, a federal judge publicly rebuked the DOJ for failing to take seriously the reputational damage its conduct throughout the Boeing case was inflicting on the agency; last week, after a five-hour meeting with DOJ officials, the families’ lead attorney Paul Cassell declared that nothing had changed.
“The meetings with the Department of Justice were what we feared—all for show and without substance,” said Cassell, who is perhaps best known for using the Victims’ Rights Act to unearth the emails and agreements that had led to Jeffrey Epstein’s unusual 2008 non-prosecution agreement. “It is clear that they are only interested in seeing through the rigged deferred prosecution agreement they brokered with Boeing without the involvement of the very families whose lives were shattered due to the company’s fraud and misconduct.”
But if Boeing is a beneficiary of legal corruption, it also wields a powerful tool against the countless witnesses to its crimes in the form of the AIR 21 whistleblower statute. Because of this law, the exclusive legal remedy available to aviation industry whistleblowers who suffer retaliation for reporting safety violations involves filing a complaint within 90 days of the first instance of alleged retaliation with a secret court administered by the Occupational Safety and Health Administration that lacks subpoena power, takes five years or longer to rule in many cases, and rules against whistleblowers an astounding 97 percent of the time, according to the Government Accountability Project, a nonprofit whistleblower law firm that is lobbying with aviation safety advocates to overhaul the statute.
If Boeing is a beneficiary of legal corruption, it also wields a powerful tool against the countless witnesses to its crimes in the form of the AIR 21 whistleblower statute.
The law also requires whistleblowers to attempt to resolve their grievances internally before they file complaints. As Barnett pointed out in his deposition, the average ethics complaint at Boeing took at least six months to work its way through the system. “So automatically, if you go to HR with an issue, and they take eight months to investigate it and they come back and tell, no, you’re wrong, and then you want to go file an AIR 21 complaint, you missed your 90-day window.”
The South Carolina court dockets are littered with failed lawsuits filed by whistleblowers who didn’t make the 90-day cutoff. Woods attempted to sue Boeing after he was terminated for disability discrimination; Hobek alleged age discrimination; Kitchens alleged sex and disability discrimination, as she was sick with cancer when she was terminated in 2016. All three whistleblowers lost, even though an FAA investigation had fully vindicated Woods’s concerns. Both Hobek and Kitchens were actually ordered to reimburse Boeing’s legal fees; a judge denied Boeing’s motion to force Woods to pay its $10,500 in legal fees on the grounds that he had no assets, liquid or otherwise, with which to pay them.
Turkewitz says that, of the dozens of Boeing South Carolina employees he’s met over the years, only Barnett was savvy, meticulous, and fast-moving enough to bring an AIR 21 case capable of jumping through all the hoops—and even then, it took seven years. Over that period, Barnett worked on the case, cared for his wife until she died of cancer in 2022, cared for his elderly mother, and raced cars as a hobby. He filled out a few job applications, but he found himself unable to submit them, traumatized by the possibility of finding himself in another workplace hell like Boeing South Carolina.
“John’s boss always told him he was going to push him till he broke, and that’s what they did,” says Turkewitz, whose therapist has been helping him come to peace with the fact that Barnett likely did kill himself, and that his initial denial was in part influenced by guilt for having forced his client to relive six and a half years of daily micro- and macro aggressions in a grueling deposition. He’s also come to think the “mystery” of Barnett’s death is just a subplot of a much bigger problem. “Boeing South Carolina is a criminal enterprise, and we need to be asking ourselves why no one is in jail over what’s happened there,” Turkewitz said.
To be fair, the 787 has avoided the kind of mass fatality events and terrifying near misses that have plagued the 737 MAX, though a Japanese Dreamliner was seen billowing smoke due to a hydraulic fuel leak as it landed in Sapporo last week. And a terrifying nosedive last month that injured 50 passengers on a 787 flight from Sydney to Auckland, attributed to a flight attendant accidentally hitting a cockpit seat switch, seems to have been at least partially exacerbated by production or quality snags. Salehpour maintains it’s just a matter of time before a massive fuselage failure caused by accumulated stress on the carbon composite structure forces Boeing to ground the plane again.
BOEING, FOR ITS PART, SHOWS NO SIGN of increased reverence for the law. In March, the National Transportation Safety Board said Boeing had refused to provide documentation on the hasty re-installation of the door plug that flew off Alaska Airlines Flight 1282 in January; Boeing countered that the job simply hadn’t been documented, a serious felony in and of itself. But in the Senate hearing earlier this month, former 737 factory manager Ed Pierson said an anonymous whistleblower had provided him with those very documents. “I’m not going to sugarcoat this, this is a criminal cover-up,” he told the committee. No law enforcement action has yet been taken, though the Justice Department has opened a criminal investigation.
Boeing’s CEO David Calhoun has resigned, but over the weekend Fortune reported his replacement could be Patrick Shanahan, the architect of the ethos that governed the 787 program and its flagship plant in South Carolina, and a man one longtime Boeing executive I know described as a “classic schoolyard bully.” Shanahan was in line to become Donald Trump’s defense secretary before word leaked that he emphatically defended his son after the then 17-year-old beat his mother—Shanahan’s ex-wife—bloody and unconscious with a baseball bat. The assault and others in the aviation executive’s mutually abusive domestic life would later prompt Shanahan to withdraw his nomination. Shanahan was hired last year as the CEO of Spirit AeroSystems, the contractor that made the door plug that fell out of Alaska Flight 1282.
The market fundamentalist business press has been working overtime to drown out widespread calls for the next CEO to be an aerospace engineer with its own counterintuitive nominations: Hey, how about the CEO of General Electric? Or if Larry Culp is out of Boeing’s league, what about the MBA who leads that South Florida manufacturer of HVAC equipment and has done such a great job serving on the Boeing board? Anyone but an “aviation romantic,” sniffed The Wall Street Journal op-ed page’s most doctrinaire Chamber of Commerce mouthpiece, Holman Jenkins, last week.
Unbelievably, Ryanair CEO Michael O’Leary just gave an interview suggesting Boeing’s next CEO should be an accountant, and admitted that he’d miss lame-duck CEO Calhoun, who majored in accounting in undergrad.
Later that afternoon, I got a text message from one of Barnett’s old Boeing co-workers who’d been fired from the Charleston plant for reporting a safety risk created by shoddy manufacturing. An FAA investigation had vindicated most of the whistleblower’s allegations, only after they’d withdrawn their AIR 21 complaint out of fear Boeing would force them to pay legal fees. Inside the whistleblower’s text was a photo of a wheel missing two lug nuts; the car had been mysteriously wobbling, so they’d pulled over to check. It had been years since they’d left the company, but they could not shake the sense that someone, somewhere was still trying to exact revenge on them for speaking out. “If anything happens,” they told me, not for the first time, “I’m not suicidal.”
