BBC: 737 Max - Still Not Fixed
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The majority of aoa sensors I have twiddled have been dual channel, with the outputs split, 1 channel from one side goes to fdr, 1channel from each side to respective side systems, and the remaining channel is used for error detection . So there you have the odd number for computer voting system
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The bottom line here, is that the Max should never have been produced, as it is an ancient dog of an aircraft. But it was pushed down the line because S.outhwest and R.yan wanted a cheap aircraft with lineal commonality. But in truth a 21st century aircraft should never have:
a. Only one sensor controlling a safety system - because that is simply criminaI. Nobody except Boeing has had simplex systems in the last 70 years.
b. A MCAS system that is able to stab-trim fully forwards - when it is known that the stab-trim is more powerful than the elevator. Thus the system has sufficient authority to overpower the pilot, and fly the aircraft into the ground. And if this authority was so easily reduced in the revised Max, then why was this not specified for the original Max? Were there occasional conditions where the system needed full trim authority (for a high-speed stall perhaps), and they are not telling us about it?
c. A manual stab-trimmer that becomes mechanically locked if the pilots are pulling back on the control column - so that no manual re-trimming is possible. (The recommended roller-coaster recovery not being advisable at 2,000 ft, and never taught in the simulator.)
d. An anti-stall device (MCAS) that operates on the stab-trimmer, rather than the control column. Look, dear Boeing, the design and mechanics of an anti-stall device are well-known, ever since the Bae Trident got into trouble. The solution is to push the control column forward, because once the nose is lowered and speed increases, the pressure can be released instantly.
However, if you push forward on the stab-trim, you cannot easily pull out of the ensuing dive because you are still trimmed (fully) forward. (As several pilots have discovered, much to their dismay). So why did the FAA not recommend the complete scrapping of the MCAS system, and the installation of a stick-pusher? Cost? Time? Certification? Has the FAA skimped in their recommended MCAS fix?
e. A master warning system that can be cancelled, so the warnings are extinguished and forgotten. Dimmed perhaps, but never extinguished. This must be the most stupid system ever invented for a commercial aircraft.
f. Important warnings, like low engine oil pressure, that simply don’t appear on the master warning system. It does not take too much in the way of distractions or inattention to miss the fact that the engine is about to seize.
g. Flight controls that cannot be separated if one side is jammed, because the two elevators are joined by a large torque tube. That would not be allowed on a modern aircraft.
h. Engine overheat and fire warning lights that are not in the pilot’s line of sight, with no repeater lights on the thrust levers. Back in 1960 the handles and lights were on the coaming, where they should be, but they were relegated to the center console to make way for the MCP. That was a retrograde fix that should never have been allowed, at least not without repeater lights on the thrust levers. But what do the FAA care, as long as profits are still being made?
i. Switches that are all identical, without even an attempt at colour coding. And the evidence for correct actioning is a light that goes bright and dim. Now between day and night, just what is bright and what is dim? Never in the history of aviation has there been such a stupid advisory/warning system.
j. Switches which are all down for on - unless they are on the forward and center instrument panels, where they are up for on. Note that the all-important electric trim cutoff switches are down for off - the complete opposite to the majority of switches on a 737. There is so much room for confusion here, you could drive a semi-trailer through it.
k. Paper checklists and emergency checklists. Now come on guys and gals, computer checklists were common back in the 80s, so why the hell are we still operating with bits of crumpled and torn paper?
l. Mainwheels that retract into the hydraulics and flight-controls bay, where shredded tyres can inflict severe damage on a multitude of systems. Some airlines placed cages in the wheel-bay to protect the systems, but they did make routine maintenance difficult. And the hydraulic release fuses were hardly an adequate solution to a failed 1960s design.
m. Center fuel pumps in the center tank, which can overheat and explode - and no auto-switching system was devised to prevent this. Has this been solved on the Max, because it was a butcher’s bin on the NG?
n. Passenger doors that have to be armed by grovelling on the floor. This is rather like having a starter-handle on a modern car.
o. Flight-deck windows that are smaller than an old-fashioned cruise-liner port-hole, because that was all they could make in 1950. Trouble is, we are in 2021 now.
I could go on, but that is sufficient for now.
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And if this authority was so easily reduced in the revised Max, then why was this not specified for the original Max? Were there occasional conditions where the system needed full trim authority (for a high-speed stall perhaps), and they are not telling us about it?
d. An anti-stall device (MCAS) that operates on the stab-trimmer, rather than the control column. Look, dear Boeing, the design and mechanics of an anti-stall device are well-known, ever since the Bae Trident got into trouble. The solution is to push the control column forward, because once the nose is lowered and speed increases, the pressure can be released instantly.
Sure, 737 is an old design, but it's still fit for purpose. I do hope the MAX is the last iteration, so Boeing can focus on building something state-of-the-art.
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Because in normal and large majority of abnormal situations there is no requirement for trimming in the opposite direction of control column, as this would just cause the out-of-trim condition, that could lead to aircraft being uncontrollable. There is an override switch available on the aft pedestal that disables this feature, if situation requires it.
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ivor toolbox
You could make billions with that idea . . . the number of people in the safety industry that think you need 3 actual sensors to ensure adequate safety and protection against sensor failure in safety critical systems . . . man . . . they are all barking up the wrong tree . . . all they need to do is fit two and pretend there are three . . . incredible . . . a proud british innovation . . . oven baked and world leading . . . well done ;-)
You could make billions with that idea . . . the number of people in the safety industry that think you need 3 actual sensors to ensure adequate safety and protection against sensor failure in safety critical systems . . . man . . . they are all barking up the wrong tree . . . all they need to do is fit two and pretend there are three . . . incredible . . . a proud british innovation . . . oven baked and world leading . . . well done ;-)
Psychophysiological entity
DaveReidUK replied:
Hardly. A slight prod perhaps. In my view, well deserved.
Perhaps if it's been kicking around that long it's high time someone prodded them. Not to explain that it's AoA or pitch attitude seems to be missing a major point. But, the nice but inappropriate drawings.
I think the questioningly intelligent target audience might be lifted to a new level if the BBC could regain some of its old standards. They do after all have Pulitzer prizewinning articles to refer to. But then you say,
Well, if it's irrelevant, they put a huge amount of effort into getting it not really correct.
Whirligigs or what have you. I think the fisherman's reel is possibly the best way of explaining to the layman the unloading of the H-Stabilizer cable run. Hauling on the luckless fish is interrupted by sharply lowering the rod and reeling in the line while slack. It's easy to imagine this being needed numerous times. A reminder about the Toronto 707 might well focus the reader's minds about historic difficulties.
Loose rivets
"I almost started this thread after reading the BBC 'paper' on my FireFox tab. I didn't because it was filled with a LOT of technical misinformation. In particular, they'd gone to the trouble of nose angle drawings but as was so often the case, got muddled with simple pitch and AoA measurements."
That's grossly unfair to the BBC.
"I almost started this thread after reading the BBC 'paper' on my FireFox tab. I didn't because it was filled with a LOT of technical misinformation. In particular, they'd gone to the trouble of nose angle drawings but as was so often the case, got muddled with simple pitch and AoA measurements."
That's grossly unfair to the BBC.
Secondly, the infographic you object to has been kicking around for a couple of years. While it's an oversimplification in that it uses the term "angle" without explaining whether it's AoA or pitch attitude,
. . . that's perfectly reasonable given (a) the target audience and . . .
(b) the fact that the distinction is arguably irrelevant in the context of the MCAS failures.
Whirligigs or what have you. I think the fisherman's reel is possibly the best way of explaining to the layman the unloading of the H-Stabilizer cable run. Hauling on the luckless fish is interrupted by sharply lowering the rod and reeling in the line while slack. It's easy to imagine this being needed numerous times. A reminder about the Toronto 707 might well focus the reader's minds about historic difficulties.
The majority of aoa sensors I have twiddled have been dual channel, with the outputs split, 1 channel from one side goes to fdr, 1channel from each side to respective side systems, and the remaining channel is used for error detection . So there you have the odd number for computer voting system
If the vane breaks in the AOA with the error detection channel you now have two wrongs outvoting one right. And the FDR will not tell the investigators the reason for the crash, because it only has the information from the unaffected AOA.
You need three independent AOAs, and all three should be connected to the FDR.
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Towards that channel argument:
1.) Hans Brinker is right. If you pick two channels from one sensor and one channel of another sensor for voting you are distorting your probability of occurence of certain fault modes to a degree where you cannot make any useful statments of the failure rate of the entire system.
2.) AFAIK the two channels are processed by one air data unit and are used for diagnosing electrical faults. That's what they are good and useful for. Hooking them up to different FCUs will either deprive you of that integrity check or things get an awful lot complicated, see 1)
1.) Hans Brinker is right. If you pick two channels from one sensor and one channel of another sensor for voting you are distorting your probability of occurence of certain fault modes to a degree where you cannot make any useful statments of the failure rate of the entire system.
2.) AFAIK the two channels are processed by one air data unit and are used for diagnosing electrical faults. That's what they are good and useful for. Hooking them up to different FCUs will either deprive you of that integrity check or things get an awful lot complicated, see 1)
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The MCAS function itself is not critical; its failure to function is likely classified as major because the result of its failure to function is simply a non-compliant column force gradient. It's malfunction was catastrophic, and still is potentially catastrophic. It is acceptable for loss of a valid AOA signal to cause the system to become inactive, as long as it does not malfunction. As such, two independent AOA sensors and signals can be an acceptable system architecture if any significant disagreement of the two AOA values causes the MCAS function to be deactivated, and no foreseeable common cause failures can cause identical errors in the two AOA sources. A voting system of three signals is not necessary when loss an accurate signal is not critical.
Thread Starter
I've received this by PM (the last line explains why), which takes us back to the original Pierson report. It is clearly relevant, but it's not my composition and will therefore not respond to any questions about it.
"Sorry for the length, but to understand Ed Pierson's report one needs the parts he left out.
He mixes two separate issues.
The first issue: A resolver is a variable transformer that measures the alignment of the magnetic field generated by a reference/excitation winding coil using the sense winding coils. If either the reference coil or the sense coils are interrupted, for example by a break, then the resolver can no longer function correctly. https://en.wikipedia.org/wiki/Resolver_(electrical) There is a fourth winding that causes the current in the reference winding; it can be treated the same as part of the reference winding for discussion purposes.
To emphasize, there are two sense coils. One provides the sine of the rotation angle multiplied by the magnetic field and other constants, the other is at a right angle to the first and provides the cosine of the rotation angle. It effectively "resolves" the mechanical angular motion into these two electrical components. By comparing the magnitude of the two signals one can get the ratio and therefore the tangent and then develop the arc-tangent to get the angle.
The reason for looking at the ratio is that losses in the system will be proportional to the signal strength. However, this means if one of the sense coils develops a high-resistance, such as from a broken wire barely making contact or a corroded connector, the angle reported will not represent the actual angle. In the Lion Air report I believe the maintainers had previously sprayed some cleaner on some connectors, which did not help, before replacing it with the miscalibrated unit.
If a wire breaks completely, that can be detected during test. If the reference winding is broken no current will flow and both sine and cosine components will be zero. If the sine or cosine winding is broken then turning the vane will show one output changing and the other remaining at zero output.
Where that leads to in the Lion Air case is that a broken wire in one of the sense windings was apparently being pulled apart by the surrounding epoxy when the epoxy was cold, causing a total failure that was reported by the system.
When the AoA assembly was cold electricity could not be conducted across the gap. As the assembly heated the epoxy expanded and brought the broken ends together. This would initially allow microscopic contact, resulting in an unstable conductivity making the ratio with the other winding appear to vary even if/when the vane was not being moved. Finally, at a sufficiently increased temperature, the two ends of the wire would be forced together to conduct sufficiently to give a stable and correct reading.
The heat that was being applied to the assembly during the Lion Air bench test appeared to be from the anti-ice heater in the AoA vane.
The second issue: The AoA vane has a heater. This is a resistive element that converts electrical power into thermal energy. The system can detect if there is current flowing through that heater and if that current is zero when voltage is applied the system does the Power = Current * Voltage-drop calculation and determines that with zero current there is zero electrical power and therefore the unit cannot produce heat. There is apparently an integral regulator to limit the maximum temperature and prevent melting the AoA vane. This failure is part of the anti-icing failure system to report.
Where Pierson fails is when he claims the heater that affected the failed winding at Lion Air has anything to do with the heater error that was reported after the AoA vane was apparently torn from the aircraft in Ethiopia.
What is certain is that the Ethiopian plane did not have a history of gradually increasingly unreliable AoA readings; in fact the AoA reading was accurate until after take-off, at least to the extent it was reading as expected and agreed with the second AoA sensor. Had there been a wire break in the resolver it would not have become the exact value that dropping against the high AoA stop, which happens when the counterweight no longer had a weight balance from the AoA vane. However that is exactly what is expected were the AoA vane torn off by a bird strike. In addition, losing that vane would also lose electrical continuity through the heater, causing the anti-icing failure warning, which is what the Ethiopian data showed.
When Ed Pierson writes: "Why did the sensor signal go unstable when heater power was removed during testing of the “removed AOA Sensor” from the Lion Air airplane?" he is mistakenly linking the effect of heat from a heater that is not part of the resolver and is trying to build on that false assumption. Had the resolver been put into a toaster-oven and no power applied to the anti-ice heater the resolver would have acted the same. I doubt that he would then blame toaster ovens as being part of a conspiracy. It went unstable because the epoxy slowly cooling gradually reduced the force with which the wires were held together, gradually increasing the resistance until a gap formed.
Note that the 60C temperature was a moving target. At some point it worked at 20C, then at 30C, 40C, and 50C. The damage done by forcing the broken wires into end-to-end contact will accumulate to where it will eventually never function. I have personally seen a mechanical system fail the same way - differential thermal expansion causing cumulative damage and a sliding window on the ability to function until it no longer could.
Where he really runs off the rails is "a factory environment under duress with a shortage of electricians" because the factory electricians do not manufacture resolvers, electrical technicians at the supplier do. There is nothing at all having to do with the factory environment that affected either crash involved AoA sensor. Honestly if it takes a Scanning Electron Microscope to see a defect and seeing that only after destructive disassembly, that's beyond what a typical Boeing assembler can detect on the factory floor.
I expect that the Blacksburg information will be used to guide remove and inspect/replace with new resolvers based on which technician or which process was being followed per which serial numbers, alongside a design review to ensure it cannot recur.
I can agree with his righteous indignation over how a factory is run and how procedures are developed, but they have no bearing on the two crashes.
I'm on the banned-from-posting list, so it may be that direct messages to me get bounced. That's a choice by the moderators and I respect it. It's their platform and up to them what to make public."
MechEngr is offline
"Sorry for the length, but to understand Ed Pierson's report one needs the parts he left out.
He mixes two separate issues.
The first issue: A resolver is a variable transformer that measures the alignment of the magnetic field generated by a reference/excitation winding coil using the sense winding coils. If either the reference coil or the sense coils are interrupted, for example by a break, then the resolver can no longer function correctly. https://en.wikipedia.org/wiki/Resolver_(electrical) There is a fourth winding that causes the current in the reference winding; it can be treated the same as part of the reference winding for discussion purposes.
To emphasize, there are two sense coils. One provides the sine of the rotation angle multiplied by the magnetic field and other constants, the other is at a right angle to the first and provides the cosine of the rotation angle. It effectively "resolves" the mechanical angular motion into these two electrical components. By comparing the magnitude of the two signals one can get the ratio and therefore the tangent and then develop the arc-tangent to get the angle.
The reason for looking at the ratio is that losses in the system will be proportional to the signal strength. However, this means if one of the sense coils develops a high-resistance, such as from a broken wire barely making contact or a corroded connector, the angle reported will not represent the actual angle. In the Lion Air report I believe the maintainers had previously sprayed some cleaner on some connectors, which did not help, before replacing it with the miscalibrated unit.
If a wire breaks completely, that can be detected during test. If the reference winding is broken no current will flow and both sine and cosine components will be zero. If the sine or cosine winding is broken then turning the vane will show one output changing and the other remaining at zero output.
Where that leads to in the Lion Air case is that a broken wire in one of the sense windings was apparently being pulled apart by the surrounding epoxy when the epoxy was cold, causing a total failure that was reported by the system.
When the AoA assembly was cold electricity could not be conducted across the gap. As the assembly heated the epoxy expanded and brought the broken ends together. This would initially allow microscopic contact, resulting in an unstable conductivity making the ratio with the other winding appear to vary even if/when the vane was not being moved. Finally, at a sufficiently increased temperature, the two ends of the wire would be forced together to conduct sufficiently to give a stable and correct reading.
The heat that was being applied to the assembly during the Lion Air bench test appeared to be from the anti-ice heater in the AoA vane.
The second issue: The AoA vane has a heater. This is a resistive element that converts electrical power into thermal energy. The system can detect if there is current flowing through that heater and if that current is zero when voltage is applied the system does the Power = Current * Voltage-drop calculation and determines that with zero current there is zero electrical power and therefore the unit cannot produce heat. There is apparently an integral regulator to limit the maximum temperature and prevent melting the AoA vane. This failure is part of the anti-icing failure system to report.
Where Pierson fails is when he claims the heater that affected the failed winding at Lion Air has anything to do with the heater error that was reported after the AoA vane was apparently torn from the aircraft in Ethiopia.
What is certain is that the Ethiopian plane did not have a history of gradually increasingly unreliable AoA readings; in fact the AoA reading was accurate until after take-off, at least to the extent it was reading as expected and agreed with the second AoA sensor. Had there been a wire break in the resolver it would not have become the exact value that dropping against the high AoA stop, which happens when the counterweight no longer had a weight balance from the AoA vane. However that is exactly what is expected were the AoA vane torn off by a bird strike. In addition, losing that vane would also lose electrical continuity through the heater, causing the anti-icing failure warning, which is what the Ethiopian data showed.
When Ed Pierson writes: "Why did the sensor signal go unstable when heater power was removed during testing of the “removed AOA Sensor” from the Lion Air airplane?" he is mistakenly linking the effect of heat from a heater that is not part of the resolver and is trying to build on that false assumption. Had the resolver been put into a toaster-oven and no power applied to the anti-ice heater the resolver would have acted the same. I doubt that he would then blame toaster ovens as being part of a conspiracy. It went unstable because the epoxy slowly cooling gradually reduced the force with which the wires were held together, gradually increasing the resistance until a gap formed.
Note that the 60C temperature was a moving target. At some point it worked at 20C, then at 30C, 40C, and 50C. The damage done by forcing the broken wires into end-to-end contact will accumulate to where it will eventually never function. I have personally seen a mechanical system fail the same way - differential thermal expansion causing cumulative damage and a sliding window on the ability to function until it no longer could.
Where he really runs off the rails is "a factory environment under duress with a shortage of electricians" because the factory electricians do not manufacture resolvers, electrical technicians at the supplier do. There is nothing at all having to do with the factory environment that affected either crash involved AoA sensor. Honestly if it takes a Scanning Electron Microscope to see a defect and seeing that only after destructive disassembly, that's beyond what a typical Boeing assembler can detect on the factory floor.
I expect that the Blacksburg information will be used to guide remove and inspect/replace with new resolvers based on which technician or which process was being followed per which serial numbers, alongside a design review to ensure it cannot recur.
I can agree with his righteous indignation over how a factory is run and how procedures are developed, but they have no bearing on the two crashes.
I'm on the banned-from-posting list, so it may be that direct messages to me get bounced. That's a choice by the moderators and I respect it. It's their platform and up to them what to make public."
MechEngr is offline
Loose rivets
"I think the fisherman's reel is possibly the best way of explaining to the layman the unloading of the H-Stabilizer cable run. Hauling on the luckless fish is interrupted by sharply lowering the rod and reeling in the line while slack."
Hmmm. And you were complaining about the BBC oversimplifying things ?
"I think the fisherman's reel is possibly the best way of explaining to the layman the unloading of the H-Stabilizer cable run. Hauling on the luckless fish is interrupted by sharply lowering the rod and reeling in the line while slack."
Hmmm. And you were complaining about the BBC oversimplifying things ?
Psychophysiological entity
I'm not a fisherman, but I've seen horrendously expensive reels totally stalled while reeling in. 'Dropping' the rod instantly took the load off and allowed the reel to continue cranking. I don't think it's a too bad analogy.
The Pierson report. That's interesting. I spent my first working years fault-finding systems. What jumps out of the read above is the stability of such a fault. Assessing conductivity of a moving break at atomic level I think would take a lot of very creative imagination.
That sounds more like the real world, but then, I've been surprised before. Electronics started with the Cat's Whisker, and the currents involved possibly altered the junction after a period of time.
A partially conducting junction happening due to varied compression - more than a few times - makes the old credulity warning light come on.
The Pierson report. That's interesting. I spent my first working years fault-finding systems. What jumps out of the read above is the stability of such a fault. Assessing conductivity of a moving break at atomic level I think would take a lot of very creative imagination.
I have personally seen a mechanical system fail the same way - differential thermal expansion causing cumulative damage and a sliding window on the ability to function until it no longer could.
A partially conducting junction happening due to varied compression - more than a few times - makes the old credulity warning light come on.
Last edited by Loose rivets; 28th Jan 2021 at 12:41.
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Hi all, and Willow, I don't think you mentioned this in your reply to me the other day, but for anyone here who doesn't know, the Washington DC Circuit Court (of Appeals) denied the 126-page emergency motion. To quote an article on law360 published on January 14, 2021 at 6:02 PM EST:
That's all that's available for free without paying or getting a free trial to read the article, but as Willow said in his post, all of this is available on PACER dot gov - for either 5 or 10 cents per page. Perhaps a more experienced user here could eventually post a PDF of the full order. ~Chris
The D.C. Circuit on Thursday declined the Federal Aviation Administration's approval to return Boeing's 737 Max jets to service after a 20-month flight ban and two deadly crashes overseas as it considers claims the FAA hasn't been transparent about its safety review.
A three-judge panel of the D.C. Circuit issued a brief order denying an emergency motion to stay the FAA's November decision lifting the 737 Max flight ban. Flyers Rights Education Fund Inc. and individual air travelers petitioned the appeals court in December claiming the jets shouldn't be allowed to fly again until the FAA discloses critical information on the...
A three-judge panel of the D.C. Circuit issued a brief order denying an emergency motion to stay the FAA's November decision lifting the 737 Max flight ban. Flyers Rights Education Fund Inc. and individual air travelers petitioned the appeals court in December claiming the jets shouldn't be allowed to fly again until the FAA discloses critical information on the...
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SLF & attorney as a poster status can sometimes lead to, well, awkward posture with regard to deciding what to say.... but I guess I opened the door.
Reading this will lead the reader into legal stuff. The post is necessary (or I think it is, at least) because information about pending court cases which is somewhat misleading or mistaken has crept into the thread. Having been chastised previously for riffing on legal stuff on a pilots' message community (and having deserved it), ... hence this lead-in apology first.
There is litigation in the federal appellate court for the District of Columbia Circuit involving the 737 MAX return to service. The appellate case is a direct outgrowth of the Freedom of Information Act lawsuit still pending in federal district court in D.C. (the trial court) - the case filed by the Flyers Rights group seeking disclosure by FAA of all the documents relating to decision-making about returning the aircraft to service. That case was filed little bit more than a year ago. It got bogged down in a dispute over whether FAA was correct to withhold "proprietary information" submitted by Boeing (the FOIA statute allows this but there are judgment calls and balancing factors being litigated still).
But while the district court case droned on (yeah yeah, I know FOIA review and disclosure takes time, more than 4 seconds of reaction time no doubt), FAA went ahead and returned the aircraft to service in the U.S. It needs to be understood, that is by anyone wanting to understand this litigation because it could and likely will affect the course of future events involving FAA reform as well as lawsuits brought against Boeing....to be understood that the entire purpose of the Flyers Rights FOIA lawsuit was to get the documents from FAA and to conduct an independent review in the public interest -- that's not my characterization let alone endorsement, it's just what they claim in their lawsuit.
So the appellate case is about getting the federal appellate court (where one of the judges also is the President's nominee for Attorney General of the United States, just a little interesting fact) to review the FAA's decision, and to reverse it. But that process - briefing the issues, any procedural motions first, getting the court to resolve the case - takes time.
So the Flyers Rights group also filed a motion asking the appellate court to "stay" the FAA's decision, on an emergency basis. In other words, even though the court has not had much of a chance to "get ahold" of the issues in the case let alone decide them, let alone decide those issues in favor of reversing the FAA's decision, the motion for a "stay" asks the court to undo the return to service while this appeal is pending. (In proper litigation terminology, a motion for stay pending court review.)
The Court of Appeals did, however, deny the motion for a "stay". But the main appeal is still ongoing. There are procedural motions already on file, including one by FAA to dismiss the appeal (on certain formalistic grounds). And there is this very, very relevant item in one of the briefs:
"In its Opposition, the FAA indicates that (if its motion to dismiss is denied) the agency will include in the administrative record the withheld proprietary data on which FAA relied, and make it available to the Court under seal and to Petitioners under an appropriate protective order. That is a very positive step that will indeed permit meaningful review by this Court." (Flyers Rights brief -- if you must know, it's the Reply Brief in Support of Emergency Motion for Stay Pending Review and Opposition to Cross-Motion to Dismiss - but the bold-type for emphasis is mine).
In other words, there is progress, of a sort, as a result of all the litigation and legal maneuvering. If the Appellate Court lets the Flyers Rights appeal go forward, then FAA evidently has told the Court it will provide the documents still being argued over in the district court, for limited review by the court and by Flyers Rights, under a Protective Order of Confidentiality. I seem to recall some poster with a callsign supposedly honoring some airport where the Arsenal of Democracy - and Henry Ford - build bombers in the 1940s saying something about a Protective Order of Confidentiality being a reasonable solution to the FOIA case, about six dozen lawyer jokes ago.
I'd quote and post the summary of the reasoning Flyers Rights cites for its Emergency Stay motion, but the Court's already denied it, and so to close a post already too long, here is all that the Court said in issuing that denial:
"Upon consideration of the emergency motion for stay, the response thereto, and the reply, it is ORDERED that the motion for stay be denied. Petitioners have not satisfied the stringent requirements for a stay pending court review. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2020)."
See, not all legalese goes on interminably.
Reading this will lead the reader into legal stuff. The post is necessary (or I think it is, at least) because information about pending court cases which is somewhat misleading or mistaken has crept into the thread. Having been chastised previously for riffing on legal stuff on a pilots' message community (and having deserved it), ... hence this lead-in apology first.
There is litigation in the federal appellate court for the District of Columbia Circuit involving the 737 MAX return to service. The appellate case is a direct outgrowth of the Freedom of Information Act lawsuit still pending in federal district court in D.C. (the trial court) - the case filed by the Flyers Rights group seeking disclosure by FAA of all the documents relating to decision-making about returning the aircraft to service. That case was filed little bit more than a year ago. It got bogged down in a dispute over whether FAA was correct to withhold "proprietary information" submitted by Boeing (the FOIA statute allows this but there are judgment calls and balancing factors being litigated still).
But while the district court case droned on (yeah yeah, I know FOIA review and disclosure takes time, more than 4 seconds of reaction time no doubt), FAA went ahead and returned the aircraft to service in the U.S. It needs to be understood, that is by anyone wanting to understand this litigation because it could and likely will affect the course of future events involving FAA reform as well as lawsuits brought against Boeing....to be understood that the entire purpose of the Flyers Rights FOIA lawsuit was to get the documents from FAA and to conduct an independent review in the public interest -- that's not my characterization let alone endorsement, it's just what they claim in their lawsuit.
So the appellate case is about getting the federal appellate court (where one of the judges also is the President's nominee for Attorney General of the United States, just a little interesting fact) to review the FAA's decision, and to reverse it. But that process - briefing the issues, any procedural motions first, getting the court to resolve the case - takes time.
So the Flyers Rights group also filed a motion asking the appellate court to "stay" the FAA's decision, on an emergency basis. In other words, even though the court has not had much of a chance to "get ahold" of the issues in the case let alone decide them, let alone decide those issues in favor of reversing the FAA's decision, the motion for a "stay" asks the court to undo the return to service while this appeal is pending. (In proper litigation terminology, a motion for stay pending court review.)
The Court of Appeals did, however, deny the motion for a "stay". But the main appeal is still ongoing. There are procedural motions already on file, including one by FAA to dismiss the appeal (on certain formalistic grounds). And there is this very, very relevant item in one of the briefs:
"In its Opposition, the FAA indicates that (if its motion to dismiss is denied) the agency will include in the administrative record the withheld proprietary data on which FAA relied, and make it available to the Court under seal and to Petitioners under an appropriate protective order. That is a very positive step that will indeed permit meaningful review by this Court." (Flyers Rights brief -- if you must know, it's the Reply Brief in Support of Emergency Motion for Stay Pending Review and Opposition to Cross-Motion to Dismiss - but the bold-type for emphasis is mine).
In other words, there is progress, of a sort, as a result of all the litigation and legal maneuvering. If the Appellate Court lets the Flyers Rights appeal go forward, then FAA evidently has told the Court it will provide the documents still being argued over in the district court, for limited review by the court and by Flyers Rights, under a Protective Order of Confidentiality. I seem to recall some poster with a callsign supposedly honoring some airport where the Arsenal of Democracy - and Henry Ford - build bombers in the 1940s saying something about a Protective Order of Confidentiality being a reasonable solution to the FOIA case, about six dozen lawyer jokes ago.
I'd quote and post the summary of the reasoning Flyers Rights cites for its Emergency Stay motion, but the Court's already denied it, and so to close a post already too long, here is all that the Court said in issuing that denial:
"Upon consideration of the emergency motion for stay, the response thereto, and the reply, it is ORDERED that the motion for stay be denied. Petitioners have not satisfied the stringent requirements for a stay pending court review. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2020)."
See, not all legalese goes on interminably.
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"Boeing had lost its moral compass" Can a human make a more succinct answer to this evolution of foolishness and the only 2 decisions that mankind must make ? I am saddened
@WR6-3
“In its Opposition, the FAA indicates that (if its motion to dismiss is denied) the agency will include in the administrative record the withheld proprietary data on which FAA relied, and make it available to the Court under seal and to Petitioners under an appropriate protective order. That is a very positive step that will indeed permit meaningful review by this Court."
I understand it’s satisfying to make some apparent progress, but if the proprietary data is available under seal, then who can see it that has the technical expertise to grasp its significance? It would need to assessed in the context of the design, testing and certification work.
“In its Opposition, the FAA indicates that (if its motion to dismiss is denied) the agency will include in the administrative record the withheld proprietary data on which FAA relied, and make it available to the Court under seal and to Petitioners under an appropriate protective order. That is a very positive step that will indeed permit meaningful review by this Court."
I understand it’s satisfying to make some apparent progress, but if the proprietary data is available under seal, then who can see it that has the technical expertise to grasp its significance? It would need to assessed in the context of the design, testing and certification work.
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GlobalNav, thanks for the question . . . . probably the best answer is to say that incremental progress counts too.
To start, the group assembled by Flyers Rights includes people who have - or at least to a non-engineer, non-pilot, appear to have - pretty strong credentials. This is not saying any of them (Capt. Sully included) belong hoisted up on top of a pedestal of authoritativeness. But compared to, say, the average inquisitor in a Congressional hearing? Or to attorneys on any and all sides of the litigation directly related to the crashes?
By itself, the fact of review by the FR group might not convince an objective observer (even one striving for logic and rationality) that any progress toward fuller disclosure will result. But.... FAA had dug in pretty strongly in the district court on its statutory basis for withholding proprietary information it received from Boeing. I haven't devoted time needed to read the cross-motions for summary judgment on the confidentiality issue filed in the district court late last year. (As an aside, "cross-motions" just means both parties in the lawsuit filed this type of motion, each one claiming that the undisputed factual record leads inexorably and necessarily to a ruling in its favor now, summarily.) Maybe FAA gave some ground in that briefing though I would doubt it. But it did make a concession in the appellate case.
So with the credentialed group reviewing the docs, and the Court reviewing them also, and in light of this being a change from FAA's position in the trial court, I could understand a ruling by the Court of Appeals which, shall we say, encourages the district court action to yield certain results. Among other things, the need for Boeing confidentiality to be sacrificed in this one very unique and very serious situation can be said to override all the factors usually cited to support upholding nondisclosure of proprietary information. To unfairly modify a familiar phrase, the unprecedented aftermath of completely senseless crashes calls for unprecedented but one-time overriding of confidentiality. Or if this is too controversial, at least it is the correct argument to assess.
This isn't a prediction that if the appellate court denies the motion to dismiss and FAA follows through on the limited, under seal, disclosure, that necessarily more public disclosure will result. But the facts of the procedural posture of these cases do suggest to this SLF/att'y that such a result seems to be brewing, and don't we all think it's high time, way past high time, for Boeing to wake up and smell the coffee.
To start, the group assembled by Flyers Rights includes people who have - or at least to a non-engineer, non-pilot, appear to have - pretty strong credentials. This is not saying any of them (Capt. Sully included) belong hoisted up on top of a pedestal of authoritativeness. But compared to, say, the average inquisitor in a Congressional hearing? Or to attorneys on any and all sides of the litigation directly related to the crashes?
By itself, the fact of review by the FR group might not convince an objective observer (even one striving for logic and rationality) that any progress toward fuller disclosure will result. But.... FAA had dug in pretty strongly in the district court on its statutory basis for withholding proprietary information it received from Boeing. I haven't devoted time needed to read the cross-motions for summary judgment on the confidentiality issue filed in the district court late last year. (As an aside, "cross-motions" just means both parties in the lawsuit filed this type of motion, each one claiming that the undisputed factual record leads inexorably and necessarily to a ruling in its favor now, summarily.) Maybe FAA gave some ground in that briefing though I would doubt it. But it did make a concession in the appellate case.
So with the credentialed group reviewing the docs, and the Court reviewing them also, and in light of this being a change from FAA's position in the trial court, I could understand a ruling by the Court of Appeals which, shall we say, encourages the district court action to yield certain results. Among other things, the need for Boeing confidentiality to be sacrificed in this one very unique and very serious situation can be said to override all the factors usually cited to support upholding nondisclosure of proprietary information. To unfairly modify a familiar phrase, the unprecedented aftermath of completely senseless crashes calls for unprecedented but one-time overriding of confidentiality. Or if this is too controversial, at least it is the correct argument to assess.
This isn't a prediction that if the appellate court denies the motion to dismiss and FAA follows through on the limited, under seal, disclosure, that necessarily more public disclosure will result. But the facts of the procedural posture of these cases do suggest to this SLF/att'y that such a result seems to be brewing, and don't we all think it's high time, way past high time, for Boeing to wake up and smell the coffee.
EU approves Boeing 737 Max return to service
The European Union Aviation Safety Agency (EASA) has certified that the redesign of the Boeing 737 MAX aircraft has met the conditions for a return to service in Europe. However, its actual return may take some time as the EASA mandated a package of software upgrades, electrical wiring rework, maintenance checks, operations manual updates and crew training which will allow the plane to fly safely in European skies. Aircraft operators will schedule these mandated actions under the oversight of Member States’ national aviation authorities. Moreover, subsequent travel restrictions across Europe due to the COVID-19 pandemic will certainly have an influence on the pace of the aircraft’s return to normal commercial operations. The plane has been grounded worldwide since March 2019 following two crashes in October 2018 and March 2019, which together claimed 346 lives. The main cause for the loss of control of the Lion Air Flight 610 and the Ethiopian Airlines Flight 302 was traced to software known as the MCAS (Maneuvering Characteristics Augmentation System), which automatically pushed the airplanes nose down repeatedly due to a sensor fault.
The European Union Aviation Safety Agency (EASA) has certified that the redesign of the Boeing 737 MAX aircraft has met the conditions for a return to service in Europe. However, its actual return may take some time as the EASA mandated a package of software upgrades, electrical wiring rework, maintenance checks, operations manual updates and crew training which will allow the plane to fly safely in European skies. Aircraft operators will schedule these mandated actions under the oversight of Member States’ national aviation authorities. Moreover, subsequent travel restrictions across Europe due to the COVID-19 pandemic will certainly have an influence on the pace of the aircraft’s return to normal commercial operations. The plane has been grounded worldwide since March 2019 following two crashes in October 2018 and March 2019, which together claimed 346 lives. The main cause for the loss of control of the Lion Air Flight 610 and the Ethiopian Airlines Flight 302 was traced to software known as the MCAS (Maneuvering Characteristics Augmentation System), which automatically pushed the airplanes nose down repeatedly due to a sensor fault.
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New details emerge about Boeing Board and CEO
Wall Street Journal today (Feb. 9 2021) - headline & sub-head:
"Boeing Board Draws Fire on CEO - Shareholders in suit say directors failed to challenge Muilenburg on postcrash media plan"
[by-line in WSJ, Andy Pasztor, Andrew Tangel]
One would guess, with some confidence, this is a shareholder derivative action. Your friendly neighborhood SLF/attorney has not (so far) found a way to access the court filings of the Delaware state court in which the case is pending. Regardless, some comments here may be worth the time to read them.
The lawsuit was originally filed with some or perhaps nearly all quotations and related information from Boeing internal documents blacked out ("redacted"). But the WSJ filed some sort of petition or request to the court for release of more information, and indeed the court granted the publication's request. In the news article today (all of the information about the case in this post is derived from the article) there is an interesting quotation from a court official. Here it is, as in the article:
More broadly, the article paints what can only be a head-shaking-causal-factor with regard to Boeing's activities (to apply a completely bloodless word) in the time period between the two crashes, and in the early aftermath of the second. Some of the internal communications are, or would be, comical - if not for the tragic loss of life. Case in point: an internal communication excoriating the Wall Street Journal over reporting, early on, about how the MCAS system was not in the FCOMs, not disclosed to pilots. Comical, if not horrifying first.
In this SLF/atty's career time I've given a few presentations to boards, and I could see starting a presentation slide deck with a plain, simple .... or possibly simplistic .... attention-focusing title. But this paragraph, by which the article concludes, leaves me speechless ... ... ... for now anyway:
"Boeing Board Draws Fire on CEO - Shareholders in suit say directors failed to challenge Muilenburg on postcrash media plan"
[by-line in WSJ, Andy Pasztor, Andrew Tangel]
One would guess, with some confidence, this is a shareholder derivative action. Your friendly neighborhood SLF/attorney has not (so far) found a way to access the court filings of the Delaware state court in which the case is pending. Regardless, some comments here may be worth the time to read them.
The lawsuit was originally filed with some or perhaps nearly all quotations and related information from Boeing internal documents blacked out ("redacted"). But the WSJ filed some sort of petition or request to the court for release of more information, and indeed the court granted the publication's request. In the news article today (all of the information about the case in this post is derived from the article) there is an interesting quotation from a court official. Here it is, as in the article:
Morgan Zurn, vice chancellor of the Delaware state court, said in her Feb. 1 order that Boeing’s internal “communications are at the very heart of this board oversight case.” Saying that little had been revealed about how Boeing’s board responded to the MAX crashes, she added: “The public interest favors disclosure.”
As noted in previous posts about the 737 MAX legal matters, a strong case can be articulated for the same logic applying to documents submitted to FAA for its review and decision about lifting the grounding order.More broadly, the article paints what can only be a head-shaking-causal-factor with regard to Boeing's activities (to apply a completely bloodless word) in the time period between the two crashes, and in the early aftermath of the second. Some of the internal communications are, or would be, comical - if not for the tragic loss of life. Case in point: an internal communication excoriating the Wall Street Journal over reporting, early on, about how the MCAS system was not in the FCOMs, not disclosed to pilots. Comical, if not horrifying first.
In this SLF/atty's career time I've given a few presentations to boards, and I could see starting a presentation slide deck with a plain, simple .... or possibly simplistic .... attention-focusing title. But this paragraph, by which the article concludes, leaves me speechless ... ... ... for now anyway:
In April 2019, vice presidents in charge of engineering and safety for the commercial aircraft unit provided their first report directly to the board, according to the suit: “The presentation opened with a primer titled: ‘What is Certification?’”
I wonder if Boeing would be kind enough to deliver that presentation to the FAA. The evolution of the certification process over the last two or three decades makes the current process hardly recognizable from the earlier one. The loss of checks and balances, independent technical oversight and increase of managerial resistance has rendered the current process relatively toothless. One can only hope that legislative action will begin to reverse this trend.
