RFCEIVED 

UNITED STATES OF AMERICA |j n A Dlflll/^ r\/^/M^C T 

FEDERAL AVIATION ADMINISTRATIOrJltARING DOCKs T 

WASHINGTON, D,C. 

In the matter of 

GOJET AIRLINES, L.L.C. 

FAA Docket No. CPIOCEOOO3I2 • >^_: 

DMS No. FAA-2010-0025 

- 0,^ O r : 

COMPLAINANT'S REPLY BRIEF ^ Q9 ^ 

Pursuant to I4C.F.R. §§ 14.28 and 13.233, Complainant submits this Reply toJRespondent's Appeal Brief which perfects Respondent's appeal of the Initial Decision of 

Administrative Law Judge Richard C. Goodwin (the "ALJ") issued on May 20, 20! 1 in 

regards to the above captioned matter.' 

I. STATEMENT OF THE CASE 

On December 23, 2008, the Complainant issued a Notice of Proposed Civil 

Penalty to Respondent for violations of 14 C.F.R. §§43.13(c), 91.13(a) and 

121.153(a)(2), in theamouhtof$33,000. On January 27. 2010, the Complainant issued a 

Final Notice of Proposed Civil Penalty to Respondent. On February 8, 2010, Respondent 

submitted a request for a hearing. On February 16, 2010, Complainant filed the 

Complaint and on March 17, 2010, Respondent filed the Answer. On August 25, 2010, a 

hearing was held before the ALJ. The ALJ served his Initial Decision on May 20, 2011 

affirming the Complaint but modifying the sanction to impose a civil penalty of $18,000. 

Respondent filed a timely notice of appeal on May 26, 2011. 

' In his brief at page 2, Respondent requested oral argument on this matter. The record has been ftilly 

developed and ihe parties have adequately briefed the issues, therefore oral argument does not appear 

necessary in this matter. 
II. STATEMENT OF FACTS 

The Violation 

On November 26, 2007, following maintenance on an aircraft brake assembly. 

Respondent's aircraft (N151GJ) was unable to retract its landing gear during a scheduled 

passenger flight. (Tr. 28: 6-20; Ex. A-5, at 4). N151GJ was unable to continue with the 

flight due to the gear not being able to retract and returned for landing. (Ex. A-5, at 2). 

Subsequent toN151GJ's return from the flight, Respondent's personnel inspected the 

aircraft and noted that the failure of the landing gear to retract was due to a landing gear 

pin that was installed during earlier maintenance that Respondent failed to remove after 

completing the maintenance to the aircraft brake assembly. (Tr. 28: 10-19). -

According to both FAA Inspector Cooper and Respondent's Chief Inspector 

Jeffrey Craig in order for an aircraft to be flown with the landing gear pin installed it 

must be flown in accordance with the Minimum Equipment List ("MEL"), which 

contains certain criteria and restrictions related to flying with the landing gear pin 

installed. (Tr. 29: 15-21; 90-1: 21-4; 120:5-11). Respondent did not fly the aircraft in 

accordance with the MEL. (Tr. 122: 8-10). When asked whether flying the aircraft with 

the gear pin installed and not In accordance with the MEL would constitute operating the 

aircraft in either an airworthy or unairworthy manner, Inspector Cooper stated that '"[i]t 

would be unairworthy." (Tr. 30: 14). According to Inspector Cooper, leaving the gear 

pins installed in the landing gear of the aircraft was a direct cause of the aircraft having to 

return pre-maturely from a flight with excess fuel and this created a potential for an 

accident due to an overweight landing. (Tr. 29: 3-12). 
The Voluntarv Disclosure Reportinu Program 

The Voluntary Disclosure Reporting Program C'VDRP") is a safety program that, 

at the time of the foregoing events, was set forth in Advisory Circular ("AC") 

No. 00-58A. Under the VDRP, certain regulated entities, including certiflcate holders like 

Respondent, can voluntarily disclose to the FAA apparent violations of FAA regulations. 

(Ex. A-11, AC No. 00-58A, at 1, ^ 1). If a regulated entity's voluntary disclosure satisfies 

all of the conditions in AC No. 00-58A, the FAA will forgo enforcement action against 

the entity and issue a letter of correction Instead, jd- at 3, T[ 6. FAA Order 8900.1, Volume 

11, Chapter I ("FAA Order 8900.1") provides guidance to FAA employees as to how to 

handle disclosures under the VDRP. (Tr. 43: 3-6). 

A regulated entity covered by the VDRP is required to notify the FAA of an 

apparent violation within 24 hours of the discovery of the apparent violation by the entity 

in order to take advantage of the VDRP process. (Ex. A-11, AC No. 00-58A, at 4, T| 7; 

Ex. A-10, FAA Order 8900.1, at 4, T[ 11-6.A.). The FAA then provides the covered entity 

with an acknowledgment of the entity's notification. (Ex. A-11, AC No. 00-58A, at 5, 

H 8; Ex. A-10, FAA Order 8900.K at 5, H 11 -7). The principal inspector ("PI") then 

"open[s] an Enforcement Investigative Report (EIR) that will be closed out with a letter 

of correction, following satisfactory development of a comprehensive fix and schedule of 

implementation agreed upon by the FAA and the entity." Id. The PI under the VDRP is 

"'the appropriate maintenance, avionics, operations inspector, or other designated FAA 

official of the program office responsible for oversight of the area of noncompliance 

involved in the disclosure." (Ex. A-11, AC No. 00-58A, at 2, ^ 5.d.; Ex. A-10, 

FAA Order 8900.1, at 2, H 11 -4.D.). 
Following the submission of the initial notification of an apparent violation by a 

regulated entity to the FAA, the VDRP then requires the entity to submit a written report 

within 10 working days of the initial notification that includes the following: 

a. A list of the specific FAA regulations that may have been violated. 

b. A description of the apparent violation, including the duration of time it 

remained undetected, as well as how and when it was detected. 

c. A description of the immediate action taken to terminate the conduct that 

resulted in the apparent violation, including when it was taken, and who was 

responsible for taking the action. 

d. An explanation that shows the apparent violation was inadvertent. 

e. Evidence that demonstrates the seriousness of the apparent violation and the 

regulated entity's analysis of that evidence. 

f. A detailed description of the proposed comprehensive fix, outlining the 

planned corrective steps, the responsibilities for implementing those 

corrective steps, and a time schedule for completion of the fix. If a proposed 

comprehensive fix is not fully developed within 10 working days, a pertinent 

regulated entity should provide at least an overview of its comprehensive fix 

plans in a written report submitted within 10 working days after the initial 

notification was made. In any event, a detailed description of the 

comprehensive fix should be submitted within 30 calendar days after initial 

notification. 

g. Identification of the company official responsible for monitoring the 

implementation and completion of the comprehensive fix. 

(Ex. A-1 1, AC No. 00-58A, at 6,1 9; Ex. A-10, FAA Order 8900.1, at 6,1 11 -8). A 

cotnprehensive fix is defined as "an action, or actions, proposed by the certificate 

holder...and accepted by the principal inspector (PI)...to preclude recurrence of the 

apparent violation that has been voluntarily disclosed under this program." (Ex. A-11. 

AC No. 00-58A, at 2, U 5.b.; Ex. A-10, FAA Order 8900.1, at 2, If 11 -4.B.). The written 

report submitted by the entity is then reviewed by the FAA which works with the entity 

to "ensure that the regulated entity has identified any root causes and systemic issues 

which led to the apparent violation." (Ex. A-11. AC No. 00-58A, at 6, t 10; Ex. A-10, 

FAA Order 8900.1. at 7, Tl 11 -9). It is this collaborative process that "helps ensure that the 

corrective actions contained in the comprehensive fix are acceptable to the FAA."id. 
If a comprehensive fix is accepted by the FAA, the VDRP then enters the 

implementation phase In which the entity implements the comprehensive fix while the 

FAA monitors the implementation process. (Ex. A-11, AC No. 00-58A, at 6-7, ^11 ; 

Ex. A-10, FAA Order 8900.1, at 7,^ 11-10). During the implementation phase, if "the 

FAA determines that the steps taken by the entity are not those documented on the 

comprehensive fix, the letter of correction may be rescinded, the investigative report may 

be reopened, and appropriate legal enforcement action may be initiated." (Ex. A-l 1, 

AC No. 00-58A, at 6-7, H 11 .b.; Ex. A-10, FAA Order 8900.1, at 7, H 11-lO.B.). 

Following successful completion of the implementationand surveillance phase, the PI 

will make a final assessment, and if the PI finds the fix to be satisfactory, the case can be 

closed. (Ex. A-11. AC No. 00-58A, at 7,11 12; ^^- A-10, FAA Order 8900.1, at 8, 

1111-11). 

When evaluating whether an apparent violation is covered by the VDRP, the FAA 

will evaluate whether five conditions are met. (Ex. A-11. AC No. 00-58A, at 3,11 6a.; 

Ex. A-10, FAA Order 8900.1, at 3, H 11 -5.A.). The five conditions that must be met by 

the entity arc: 

(1) The certificate holder, qualified fractional ownership program, or PAH 

has notified the FAA of the apparent violation immediately after detecting 

it and before the Agency has learned of it by other means. 

(2) The apparent violation was inadvertent. 

(3) The apparent violation does not indicate a lack, or reasonable question, 

of qualification of the certificate holder, qualified fractional ownership 

program, or PAH. 

(4) Immediate action, satisfactory to the FAA, was taken upon discovery 

to terminate the conduct that resulted in the apparent violation. 

(5) The certificate holder, qualified fractional ownership program, or PAH 

has developed a comprehensive fix and schedule of implementation 

satisfactory to the FAA. The comprehensive fix includes a follow-up selfaudit to ensure that the action taken corrects the noncompliance. The selfaudit is in addition to any audits conducted by the FAA. 
Id. 

If a dispute occurs regarding the acceptance of a comprehensive fix, the VDRP 

provides a mechanism for resolution of such dispute. (Ex. A-11, AC No. 00-58A, at 7, 

H 13; Ex. A-10, FAA Order 8900.1, at 8, H 11-12). The dispute resolution provision of the 

VDRP provides that, 

"[w]hen disputes occur regarding the acceptance of a proposed • 

comprehensive fix, or a modification thereto before the fix is considered 

satisfactory, the PI and the pertinent regulated entity may request that the 

issue be resolved at the ne.xt level of management within the FAA. This 

procedure will provide for an independent assessment of the areas in 

disagreement." 

MRespondent's VDRP Submission 

On November 26. 2007, Respondent provided an initial notification to 

Complainant of an alleged violation involving Respondent's operation ofN151GJ with a 

gear pin installed in the left main landing gear. (Ex. A-5, at 1; Tr. 36: 1 -20). On 

November 29, 2007, Complainant provided Respondent with an initial notification 

response. (Ex. A-5, at 2). On December 10, 2007. Respondent submitted a written report 

to Complainant regarding the violation. (Ex. A-5, at 2; Tr. 38-9: 21-1). In the written 

report. Respondent provided the following comprehensive fix proposal: 

"[t]he Mechanic was counseled on the mandatory procedures outlined in 

the General Maintenance Manual that requires you to make an entry in the 

Aircraft Maintenance Flight Logbook stating 'Landing gear pin installed, 

retnove before flight'." 

(Ex. A-5, at 4). 

On January 25, 2008, in response to the VDRP report, the PI for Respondent, 

FAA Inspector Cooper, sent a letter to Respondent stating that a comprehensive fix 
needed to be established In accordance with FAA Order 8900.1. (Ex. A-6; Tr. 39: 3-7).^ 

Prior to sending the Januar>' 25, 2008 letter, Inspector Cooper had the letter approved 

through two levels of supervision. (Tr. 60-1: 22-12; Ex. A-7). 

Inspector Cooper determined that Respondent's offered fix. counseling the errant 

mechanic, was not sufficient to preclude recurrence ofthe incident. (Tr. 45: 7-21; 

Ex. A-5, at 5; Ex. A-6). Specifically, Inspector Cooper stated that: 

"[t]he mechanic involved knew ofthe GMM requirement to make a 

logbook entry stating the landing gear pin was installed prior to the 

incident, and yet still forgot to make the entr>'. Counseling (reminding) the 

mechanic ofthe GMM requirement does not meet the guidance In FAA 

Order 8900.1, Volume 11, Chapter 1, paragraph 11 -4. The comprehensive 

fix should prevent the same mechanic, or any other mechanic, from 

forgetting to make the logbook entry and subsequently forgetting to 

remove the gear pins following maintenance again." 

(Ex. A-5, at 5; Ex. A-6, at 2). Inspector Cooper noted that the procedures in Respondent's 

maintenance manual did not include removing the landing gear pins after brake 

maintenance was performed. (Tr. 46: 2-7). Inspector Cooper suggested as a part ofthe 

comprehensive fix that Respondent amend the manual to include removal ofthe landing 

gear pins and Respondent rejected that suggestion: (Tr. 46: 7-14). Inspector Cooper slated 

that "[fjailure to provide a comprehensive fix acceptable to this office by the close of 

business on February 8, 2008 will result in the self-disclosures being closed out ofthe 

web based VDRP system and processed as enforcements (sic) utilizing FAA Order 

2150.3." (Ex. A-6, at 1; Tr. 84: 9-14). Respondent indicated to Inspector Cooper that 

other than counseling the mechanic, they would not implement any other fixes. (Tr. 39: 

15-21; 46: 2-15; 50: 2-11). Respondent received the January 25, 2008 letter containing 

the February 8, 2008 deadline but never responded by providing another comprehensive 

' FAA Order 8900.1 at 6, H 11-8.F. discusses the requirement to provide a comprehensive fix under the 

VDRP which is analogous to the requirement that a comprehensive fix be established under AC 00-58A. 
fix. (Tr. 125: 1-8). Complainant subsequently brought this enforcement action. (Tr. 51: 

11-14). 

ALJ's Written Initial Decision 

The ALJ affirmed the Complaint with a modification of sanction. Specifically, the 

ALJ found that Respondent failed to follow the procedures outlined in its GMM and 

therefore violated 14 C.F.R. § 43.13(c). ^ (Initial Decision at 5). The ALJ found that 

Respondent violated 14 C.F.R. § 121.153(a)(2) "because an aircraft with a lockpin 

installed in error is not in a condition for safe operation." Id. He further found that 

Respondent violated 14 C.F.R. § 91.13(a) because "a violation of § 91.13(a) follows as a 

residual violation once the fact of an unairworthy operation has been established." ]d. 

The ALJ addressed Respondent's afllrmative defense finding that Complainant's 

decision to "reject Respondent's VDRP submission and to institute enforcement action 

was lawful." ]d. at 7. He concluded that Respondent "had failed to prove its affirmative 

defense." 

id- at 8. 

III. STANDARD OF REVIEW 

On appeal, the FAA Decisionmaker considers whether each finding of fact is 

supported by a preponderance of reliable, probative, and substantial evidence, and 

whether each conclusion of law is made in accordance with applicable law, precedent, 

and public policy. 14 C.F.R. § 13.233(b)(l)-(2). 

^ The ALJ's finding that Respondent violated section 43.i3<c) is not contested and is not raised as a basis 

for Respondent's appeal. 
IV. COUNTERSTATEMENT OF THE ISSUES 

1. Whether the ALJ's finding that Respondent violated section 121.153(a)(2) 

is supported by a preponderance ofthe reliable, probative, and 

substantial evidence, and is consistent with applicable law, precedent, and 

public policy. 

2. Whether the ALJ properly found Respondent violated section 91.13(a) as 

a residual violation. 

3. Whether the ALJ correctly found that Complainant's rejection of 

Respondent's voluntary disclosure and initiation of an enforcement 

action accorded with the requirements of AC 00-58A governing the 

"Voluntary Disclosure Reporting Program." 

V. ARGUMENT 

1. The ALJ's finding that Respondent violated section 121.153(a)(2) is 

supported by a preponderance ofthe reliable, probative, and substantial evidence, 

and is consistent with applicable law, precedent, and public policy. 

The ALJ's finding of a violation of 14 C.F.R-. § 121.153(a)(2) is fully supported 

by a preponderance ofthe reliable, probative, and substantial evidence, and consistent 

with applicable law, precedent, and public policy. Section 121.153(a)(2) provides that 

"[e]xcept as provided in paragraph (c) of this section, no certificate holder may operate 

an aircraft unless that aircraft -...[i]s in an airworthy condition and meets the applicable 

airworthiness requirements of this chapter, including those relating to identification and 

equipment." 

"To be airworthy, an aircraft must (1) conform to its type design approved under a 

type certificate and to applicable ADs [Airworthiness Directives], and (2) be in a 

condition for safe operation." In the Matter of Whitley, FAA Order No. 2009-4, 2009 WL 

210674, at *5 (Jan. 14, 2009), fciting In the Matter of Kilrain. FAA Order No. 1996-18, 

1996 WL 325902, at *4 (May 3, 1996)). "Ainvorthiness and 'fiyability' are not 

synonymous concepts." Whitley. 2009 WL 210674, at *5 (citing Copsev v. NTSB. 993 
F.2d 736, 739 (10'^ Cir. 1993)); accord In the Matter of US Air. FAA Order No. 1996-25, 

1996 WL 509937, at ^6 (Aug. 12, 1996). 

In order for the aircraft in question to be operated In an airworthy manner with a 

landing gear pin installed, the aircraft must be operated In accordance with the MEL. 

(Tr. 29: 15-21; 90-1: 21-4; 120: 5-il). TheMEL Imposes certain restrictions upon the 

fiight including certain weight restrictions in order to avoid overweight landings. (Tr. 29: 

2-12). Failure to operate the aircraft in accordance with the MEL renders the aircraft 

unairworthy because It creates the possibility of an accident caused by an overweight 

landing. (Tr. 30; 7-14; 29:10-12). Here, the MEL was not used to operate the aircraft with 

the landing gear pin installed. (Tr. 122: 5-10). The record shows that the gear pins were 

installed as a safety measure while maintenance was performed on the aircraft, one of 

which Respondent failed to remove after completion ofthe maintenance and before the 

November 26, 2007 fiight. (Tr. 28: 10-19). In fact, the aircraft returned from the fiight 

with more fuel than it should have had if it had been operated properly under the MEL, 

and that situation created the possibility of an accident due to the aircraft being 

overweight. (Tr. 29: 1-12). 

Section 121.153(a)(2) prohibits a certificate holder from operating an aircraft in 

an unainvorthy condition. Among other requirements noted above, to be airworthy an 

aircraft must "be in a condition for safe operation." Whitley. 2009 WL 210674, at *5. 

Respondent's operation ofthe aircraft with the gear pin in and without using the MEL 

rendered the aircraft not in a safe condition for operation because ofthe possibility of an 

accident due to the aircraft landing overweight. Respondent's operation put the 

passengers, aircrew, and aircraft at risk. The ALJ found that "[a]n aircraft operating in 
these circumstances is not in a condition for safe operation and, by definition, cannot be 

considered airworthy." (Initial Decision at 5). This finding is supported by the 

preponderance ofthe reliable, probative, and substantial evidence and is consistent with 

applicable law and precedent. 

2. The ALJ properly found Respondent violated section 91.13(a) as a 

residual violation. 

As discussed above, the aircraft In question was operated in an unairworthy 

condition in violation of 14 C.F.R. § 121.153(a)(2). The ALJ also found that Respondent 

violated 14 C.F.R. § 91.13(a) because this violation "follows as a residual violation once 

the fact of an unairworthy operation has been established." (Initial Decision at 5). In his 

brief. Respondent has raised no basis to disturb this finding. 

Section 91.13(a) provides that "[n]o person may operate an aircraft in a careless 

or reckless manner so as to endanger the life or property of another." There is "[a]mple 

legal authority...indicating that absent extraordinary circumstances, careless or reckless 

operation of an aircraft follows as a residual violation [once the agency establishes 

operation of an unairworthy aircraft]." In the Matter of Ace Pilot Training. FAA Order 

No. 2005-12, 2005 WL 2214609, at *5 (Aug. 15, 2005) (citing In the Matter of USAir, 

Inc.. FAA Order No. 1992-70, 1992 WL 753206, at *3 (Dec. 21, 1992)). 

Respondent contends that "extraordinary circumstances exist in which to negate" 

the ALJ's conclusion. (Resp't's Appeal Br. at 6). Specifically, it contends that Inspector 

Cooper's testimony was that '"this airplane fiying with the gear pin installed is not an 

unairworthy condition. It is just subject to restrictions, and in no case would it constitute a 

careless manner." \d. (citing to testimony at Tr. 29). This is a gross misapprehension of 

the substance ofthe Inspector's testimony. 
Inspector Cooper testified that leaving the gear pins in the landing gear ofthe 

aircraft was a direct cause ofthe aircraft having to return pre-maturely from a fiight with 

excess fuel and this created a potential for an accident due to an overweight landing. 

(Tr. 29: 3-12). Inspector Cooper further testified that fiying the aircraft with the gear pin 

in and not in accordance with the MEL constitutes operation ofthe aircraft in an 

unairworthy manner. (Tr. 30: 14). Consequently, Inspector Cooper's testimony cannot 

reasonably be understood to suggest otherwise. Thus, even If Chief Inspector Craig 

testified, as Respondent states, that Respondent has "legally" operated aircraft with the 

landing gear pin installed in the past, (Resp't's Appeal Br. at 6), Respondent did not 

legally operate N151GJ in this case. 

In sum, the ALJ's finding of a residual violation of section 91.13(a) accords with 

the precedent found in Ace Pilot Training and is proper in this case. Further. Respondent 

has failed to state any "extraordinary circumstance" under Ace Pilot Training that would 

overcome a finding ofa residual violation of 14 C.F.R. § 91.13(a). Therefore, the ALJ's 

finding of a residual violation of 14 C.F.R. § 91.13(a) should be affirmed. 

3. The ALJ correctly found that Complainant's rejection of Respondent's 

voluntary disclosure and initiation of an enforcement action accorded with the 

requirements of AC 00-58A governing the ^^Voluntary Disclosure Reporting 

Program." 

The ALJ's determination "that the FAA's decision to ultimately reject 

[Respondent's] VDRP submission and to institute enforcement action was lawfijl" is 

proper and should be affirmed. Complainant's decision to reject Respondent's VDRP 
submission was made in accordance with the applicable procedures in the policy 

contained in AC 00-58A.^ 

As a general proposition, "agencies may not violate their own rules and 

regulations to the preiudice of others." Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 

2005). Federal agencies must "follow their own rules, even gratuitous procedural rules 

that limit otherwise discretionary action." Steenholdt v. FAA. 314 F.3d 633, 639 (D.C. 

Cir. 2003) (finding that the FAA was required to follow procedures published in its own 

Order but the failure to follow those procedures was without prejudice to the Petitioner). 

In these circumstances, it Is clear that Complainant's actions comported with applicable 

Agency policy and guidance regarding the VDRP. 

Under the applicable version ofthe VDRP in AC No. 00-58A, mere selfdisclosure ofa violation is not sufficient under the AC for the Complainant to forgo civil 

penalty action for administrative action. The AC requires that all ofthe five conditions in 

paragraph 6.a. must be met. (Ex. A-11, AC No. 00-58A, at 3, H 6). Here Respondent 

failed to meet the fifth condition that "[t]he certificate holder...has developed a 

comprehensive fix and schedule of implementation satisfactory to the FAA." (Ex. A-11, 

AC No. 00-58A, at 3,16.a.; Ex. A-10, FAA Order 8900.1, at 3, ^ 11-5.A.). 

Although Respondent submitted its comprehensive fix that It would counsel the 

•mechanic that the mandatory procedures in the GMM required him to make an entry in 

the fiight logbook stating that the pin was removed before fiight. Inspector Cooper did 

not accept the comprehensive fix because it did "not preclude recurrence of this 

Although the ALJ cites the "arbitrary and capricious standard" for judicial review of agency actions as his 

basis for review ofthe VDRP issue, (Initial Decision at 6), the standard of review for the FAA 

Decisionmaker is whether each conclusion of law is made in accordance with applicable law, precedent, 

and public policy. 14 C.F.R. § 13.233(bKn-(2). 

13 
violation." (E\. A-5, at 4; Ex. A-6, at 2); see also AC 00-58A at Ex. A-11, at 2, ^ 5.b. 

(defining comprehensive fix as ".. .an action, or actions, proposed by the certificate 

holder...and accepted by the principal inspector (PI)...to preclude recurrence ofthe 

apparent violation that has been voluntarily disclosed under this program."). In addition 

to suggesting how Respondent's comprehensive fix would be acceptable. Inspector 

Cooper informed Respondent that a comprehensive fix, acceptable to Complainant, 

needed to be resubmitted by February 8, 2008 or the initial approval of Respondent's 

self-disclosures would be rescinded and an enforcement action would be brought. 

(Ex. A-6, at 1 and 2). 

Respondent received Inspector Cooper's January 25, 2008 letter containing the 

February 8, 2008 deadline.^ (Tr. 125: 1-8). Had Respondent submitted another proposal. 

Inspector Cooper was prepared to evaluate the proposal to ensure that such a fix would 

preclude recurrence ofthe violation. (Tr. 46: 16-21). Respondent, however, elected not 

to provide another comprehensive fix for Inspector Cooper's consideration or otherwise 

communicate with its PI or with the next level of management within the FAA. (Tr. 39: 

15-21; 50: 2-11; Tr. 125: 1-8). Because Respondent failed to satisfy all five conditions for 

acceptance ofthe self-disclosure under the VDRP, Complainant brought enforcement 

action. (Tr. 51: 11-14). 

Respondent contends that it submitted an appropriate comprehensive fix and that 

the FAA's decision to reject that fix and Initiate enforcement action rather than allowing 

Respondent to have its proposed fix reviewed by the next level of management is 

Respondent acknowledged in his Post Hearing Brief that (he January' 25, 2008 letter provided nodfication 

to Respondent ofthe February 8, 2008 deadline. (Resp't's Post Hearing Br. at II). Specifically, 

Respondent stated that "Cooper never notified [Respondent] of his decision to rescind the VDRP and 

institute an enforcement action prior to the January 25, 2009 (sic) letter." 1^, 

14 
arbitrary and capricious. (Respondent's Appeal Br. at 9). Although the ALJ noted in his 

summary of Respondent's VDRP dispute that Respondent alleged Complainant failed to 

inform Respondent of its options following Complainant's withdrawal of its acceptance 

of Respondent's initial self-disclosure, (see Initial Decision at 3 (citing Resp't's Post 

Hearing Br. at 6. 11-14; Tr. 14-15)), Respondent states in this appeal that It does not 

argue that. (Resp't's Appeal Br. at 9 n.4). Instead, Respondent states that it argues "that 

by failing to notlly it ofthe decision to rescind the voluntary disclosure and institute an 

enforcement procedure it was unable to avail itself of the option to elevate Its dispute 

with Cooper over the proper comprehensive fix to the ne.xt level of management within 

the KAA as the FAA's own published guidance documents provide for." (Resp't's 

Appeal Br. at 9 n.4). 

Regardless of how Respondent frames Its VDRP argument. It has no merit. As 

already discussed above, the record establishes that Inspector Cooper gave written notice, 

received by Respondent, that it had until February 8. 2008 to submit a comprehensive fix 

satisfactory to Complainant or the matter would proceed as a legal enforcement action. 

Respondent freely chose to neither submit another comprehensive fix nor take the matter 

up to the next level of management. Accordingly, the ALJ properly found that 

Complainant's ultimate rejection of Respondent's voluntary disclosure and decision to 

proceed with this enforcement action accorded with the applicable policy and guidance 

and was, therefore, lawfijl. (Initial Declsion_at 7). The ALJ thus properly concluded 

Respondent "failed to prove Its affirmative defense." Id. at 8. 

In footnote 5 of Respondent's Appeal Brief, Respondent claims that the holding in FAA v. GoJet 

Airlines, LLC, DMS No. FAA-2010-0i90 (May 20, 2010) has some bearing on this case. However, the 

matttr before the FAA Decisionmaker here and the other matter referenced by Respondent in footnote 5 are 

15 
VI. CONCLUSION 

For all ofthe foregoing reasons. Complainant respectfully requests the FAA 

Decisiomaker affirm the ALJ's initial decision In its entirety. 

Respectfully submitted, 

Peter Lynch 

Assistant Chief Counsel 

for Enforcement 

Dated: October 7, 20 

Charles Raley, Attorney 

Enforcement Division, AGC-300 

Office ofthe Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Phone: (202)267-3357 

Facsimile: (202)267-5106 

two distinct cases, each with distinct facts and circumstances, and each adjudicated in separate hearings. 

Moreover that other case is not even precedent. 
Certificate of Service 

I hereby certify that on this date I have sent by certified mail, return-receipt 

requested, one original and one copy of Complainant's Reply Brief/»the Mailer of 

GoJet Airlines, LLC, Docket No. CP10CE0003, addressed to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: FAA Decisionmaker, AGC-430 

Wilbur Wright Building-Suite 2W1000 

In addition. I hereby certify that on this date I have sent by certified mail, returnreceipt requested, one copy ofthe foregoing document to: 

David J. A. Hayes, II, Esq. 

Vice President & General Counsel 

Trans State Airlines Inc. 

11495 Natural Bridge Rd., Suite 303 

Bridgeton, MO 63044 

Dated: October 7, 2011