An appeals court has upheld the decision to drop a criminal charge filed against Boeing after two fatal 737 Max crashes.

A group of families who lost loved ones in the deadly crashes had asked the appeals court to reverse the November decision from a federal judge in Texas, which allowed Boeing and the Department of Justice to move forward with a deal to drop the criminal fraud charge, while imposing new fines and compliance requirements on the company.

In their appeal, the families argued that dropping the charge was not in the public interest.

The latest decision by the federal court of appeals in New Orleans Tuesday was another loss for the families, who have long held that the government should do more to hold Boeing and its executives accountable.

Attorney Paul Cassell, who is representing many of the victims’ families, said in a statement Tuesday the ruling “reveals how America’s criminal justice system continues to mistreat crime victims and their families.”

The families weren’t “given a meaningful opportunity to shape the negotiations between the Justice Department and Boeing,” Cassell alleged.

Boeing declined to comment on the ruling.

The Justice Department charged Boeing in 2021 with one count of fraud, claiming the company misled safety regulators about a software system on the then-new Max. An error with that system led two planes to crash, first in Indonesia in 2018 and then in Ethiopia in 2019. The two crashes killed 346 people.

On the same day the Justice Department filed the criminal charge, it also entered into a deferred prosecution agreement with Boeing, which would drop the criminal charge if the company met certain conditions.

In 2024, just after a midair panel blowout on another Boeing Max plane, prosecutors determined Boeing had violated the terms of the deal. The victims’ families saw that decision as a chance for more accountability, potentially reopening the door for criminal prosecution.

Later that year, Boeing and the Justice Department entered into a new deal that would similarly allow the company to avoid criminal prosecution if it met certain conditions but Judge Reed O’Connor, a federal judge in Texas, struck down that agreement.

In November, O’Connor approved the parties’ second attempt at a new deal; this time through a nonprosecution agreement. In his ruling, O’Connor warned that the deal won’t ensure the safety of the flying public but that case law did not support denying the motion to drop the charge just because the court disagrees with the government.

On Tuesday, judges in the 5th Circuit Court of Appeals similarly ruled that they lacked the authority to review a district court’s decision to grant a motion dismissing a criminal prosecution.

The appeals court also determined that the Justice Department followed the Crime Victims' Rights Act as it considered the most recent deal with Boeing, dismissing another complaint from the families who lost loved ones in the crashes.

An earlier ruling in 2023 had determined federal prosecutors had violated that statute by not conferring with victims' families as they discussed the original deferred prosecution agreement with Boeing.

In this case, the appeals court wrote, the Justice Department “did not violate the (Crime Victims' Rights Act) by failing to confer with the families or by misleading them” about the agreement.

Sanjiv Singh, an attorney representing families who lost loved ones when the first Max plane crashed, said he was “deeply disappointed” by Tuesday's ruling.

But he expressed optimism that the yearslong case had built a “legal record” related to the Crime Victims' Rights Act. “It will inform future cases, future advocacy, and future reforms,” he said in a statement.

Catherine Berthet, who lost her daughter in the second crash, said in a statement Tuesday she was most upset about what the ruling “says about the justice system’s inability to see where the public and passengers’ best interests truly lie.”

The families could now ask the 5th Circuit Court of Appeals to reconsider the decision, or appeal to the U.S. Supreme Court. Neither court has to accept the request, and it's not clear if the victims’ families will choose to do so.

The nonprosecution agreement requires Boeing to pay a fine, put additional money into a victims’ compensation fund, and invest in quality and safety programs.

The new agreement does not require an independent party to monitor Boeing's compliance with the deal, as previous deals had. Instead, it allowed Boeing more influence to choose who would oversee its compliance.

In previous court filings, the Justice Department said Boeing had made “meaningful improvements” to its compliance programs, including structural and leadership changes.

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