IN THE MAnER OFU.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.

FAA Docket No. CP10CE0003. GOJET AIRLINES, LLC (VD GEAR PINS) 

### ) ) ) ) ) DMS No.**FAA~2010-0025** Judge: ALJ Richard C. Goodwin

RESPONDENT GOJET AIRUNES LLC'S POST HEARING BRIEF, CLOSING ARGUMENT, AND RENEWED MOTION FOR DECISION COMES NOW Respondent GoJet Airlines LLC, by and through its counsel of record, in accordance with the Law Judge's Post Hearing Orderdated August 25, 2010

as amended by Orderdated February 4, 2011 and pursuant to the Rules of Practice in FAA Civil PenaltyActions (14 C.F.R. 

### § 12.230(c»and hereby submits this Post Hearing Brief, Closing Argument and Renewed Motion for Decision. 

## h STATEMENT OF THE CASE The Federal Aviation Administration (hereafterthe "FAA") initiated this action against GoJet Airlines LLC (hereaffer "GoJet" or "Respondenf) on or about February 16,2010. The FAA alleges that GoJet**viol~ted** Section 43.13(a) byvirtue of43.13(c), 91.13(a), and 121.153(a)(2) ofthe Federal Air Regulations ("FARs") based upon the fact that GoJet's contracted maintenance personnel installed lockpins in N151GJ's main landing gearwhile replacing the aircraft's numbertwo brake assembly but then failed to

remove the gear pins and failed to make the required logbook entry stating "landing gear pin installed, remove before flight". The FAA is requesting that this Court enter anorder assessing Respondent a civil penalty in the amount of$33,000 for said violations. GoJetfiled its Answer denying the allegations on orabout March 12,2010. (Docket Id FAA-2010-0025-005) In addition, on or aboutAugust11,2010,GoJetfiled its Motion for Decision and Memorandum in Support on the basis that FAA is use,d evidence

. .obtained via a voluntary disclosure filed by GoJet in accordance with the FAA's Voluntary Disclosure Program ("VDRP"). (Docket Id FAA-2010-0025-001

### O) The Agency filed its Opposition to said Motion on August 31,2010. (Docket Id FAA-2010-0025-0011) A hearing was held on this matter on August 25,2010. On November 18,2010. the Agencyfiled its Post Hearing Briefand Closing Arguments. 1 

### II. STATEMENT OF UNCONTROVERTED FACTS GoJet is the holder of Part 121 Air Carrier Certificate Number N6WA249L. (See Complaint ,-r1l.1) At all relevant times, GoJet was the operator ofaircraft N151GJ, a Canadair CRJ-700 Regional Jet, Model CL-600-2C10, registered as an aircraft available for use in Part 121 revenue operations. (See Complaint ,-r1l.2) On orabout November 26. 2007, GoJel's contracted maintenance personnel removed and replaced N151 GJ's numbertwo brake assembly in accordance with the CRJ-700 Aircraft Maintenance Manual ("AMM") which requires that maintenance personnel lift the main landing gear ("MLG") with a jack and ensure the locks pins are installed in the nose landing gear and main landing gear. (TR 28: 10-20; See A- 2 

### & A3) In addition, GoJet's General Maintenance Manual ("GMM") requires that a mechanic after installation ofthe gear pins, make an entry in the aircraft maintenance Flight

1 On a procedural note, Respondent would like to point out that that Agency's brieffails to comply with § 13.231(c) ofthe Investigative and Enforcement Procedures in that it fails to include proposed findings of fact and conclusions of law. 

### 2Logbook stating, "landing gear pin installed, remove before flight." (See TR 34: 10-18; See also A- 4) GoJet's maintenance personnel failed to make the required logbook entry and failed to removethe lock pins from the MLG. (See TR**35~-18-19;** See also A**5}~As** a result, GoJet aborted a subsequent**totake~off** of N:l51GJ.,(See_also A-1) After leaning ofthis incident, on the same day, GoJet's Chief InspectorJeff Craig informed the FAA aboutthe above described incident byfiling a self-disclosure utilizing the Voluntary Disclosure Reporting Program ("VDRP") system, (See A-5; SeealsoTR 36: 1-4, 114:17-20). The FAAestablished the VDRP to provide an incentive to encourage carriers to voluntarily discloseviolations and potential violations ofthe Federal Aviation Regulations ("FAR"). (SeeTR 82:15-22, 83:1-4; See also A-10) Underthe VDRP, the FAAwill forgo a civil penalty action when a violation is promptlyvoluntarily disclosed tothe FAA and corrective action 

### is taken to ensure that the same or a similarviolation does not recur. (See A-11) In orderto qualify for the protections ofthe VDRP, the following fIVe conditions must be met: (1) the certificate holdermust notifythe FAA ofthe apparent violation immediately after detecting it and before htAgency has learned of

### it by other means; (2)the apparent violation must be inadvertent; (3)the apparentviolation must not indicate a lack, or reasonable question, ofqualification ofthe certificate holder, (4) Immediateaction, satisfactorytothe FAA, wastaken upon discoverytoterminatethe conductthat resulted in the apparentviolation; and (5)the certificate holder has developed or is developing a comprehensive fix and scheduleofimplementation satisfactorytothe FAA. (See A-11) There are six phases oftheVDRP. Phase 1consists ofthe carriers notification of the apparent violation to the FAA. (See A-11) During Phase2 the FAA (via a PI) provides a response tothe carrier's initial notification. 

## C!!1) In Phase 3 the Carrierfiles a Written Report with the FAA. 

## C!!1) After the Written Report is filed, during Phase 4, the Written Report 

### 3

### submitted by the carrier is reviewed by the FAA**~)** 

### As the FAA's published guidance document states, during this phase the "FAA works with the certificate holder.

..to ensure that the regulated entity has identified any root causes and systemic issues Which led to the- apparent violation." Once FAA approves ofa comprebensive fix.:in,phase 5 consists ofthe implementation period.**~)** 

### During this phase, "the FAA and the pertinent regulated entity should continue to work together. The FAA may advise and assist the entity in correcting any identified systemiC problems. Changes will be made to the proposed comprehensive fix when the need is identified." Finally at the end ofthe implementation period, 

### the program concludes in phase 6with the inspectorsignoff.**~)** 

### In addition, the information contained within the written report itself, the FAA's web-based system requires 

### the input ofthe following infomlation in theWritten Report Stage: a list ofthe specific FAA regulations that may have been violated; a description ofthe apparent violation, including the duration of time it remained undetected, as well as how

### and when itwas detected; a description ofthe immediate action taken to terminate the conduct that resulted in the apparentviolation, induding when itwas taken, and who was responsible for taking the action; an explanation that shows the apparentviolation was inadvertent; evidence that demonstrates the seriousness ofthe apparent violation and the regulated entity's analysis ofthat evidence; completion ofa Risk Assessment Matrixto aid in evaluating the significance ofthe event; a detailed description ofthe proposed comprehensive fix, outlining the planned corrective steps, the responsibilities for implementing those corrective steps, and atime schedule for completion ofthe fix and the subsequent self-audit; and finally, identification ofthe company official responsible for monitoring the implementation and completion ofthe comprehensive fix and the self audit. 

### (!QJ

4After receiving GoJet's voluntary disclosure FAA Inspector Gary Cooper ("Cooper"), the Principal Maintenance Inspector assigned to GoJet's certificate, reviewed the disclosure and determined that it was a valid selfdisclosure. (See TR 21: 18-19,38:15-19,88:17-20) ,.Thereby.completing phase 2.,ofthe VDRP, GoJet next filed

a Written Report with the FAAvia the electronic VDRP system. (TR 38:21-22, 39:1) According to the FAA's published guidelines, the written report must contain a detailed description ofthe proposed comprehensive fix, outlining the planned corrective steps, the responsibilities for implementing those corrective steps, and at time schedule for completion ofthe fix. (See A-11) Based on the fact thatthe mechanic involved in the incident stated in an interview to the FAAthat he knew hewas supposed to make the required logbook entry butforgot, GoJet identified this as an isolated incident and not a systemic problem and proposed counseling and re-training ofthe mechanic as a comprehensive fix. (See TR 45:11-14,70: 15-16; See also A-5) After reviewing the Written Report, Cooper requested changes tothe comprehensive fix because he did not believe the proposed comprehensive fix precluded a recurrence ofthis violation. (See TR 45: 18-21). Cooper believed that an appropriate comprehensive fix would be generation ofan MX43 which could be inserted as part of GoJet's maintenance manual



### . procedures. (See TR 46:7-12) His proposal included adding another step to the checklist for changing the break, reminding the mechanic to remove the gear pin or pins the mechanic upon completion. (See TR 75: 18-22 

### & TR 76: 1) This step was in addition to whatthe aircraft maintenance manual required. (See TR 76:7-8) A dispute arose as to whether or not this additional requirement was an appropriate comprehensive fix (See TR 115: 12-18).



### 5The FAA's published and publicly available guidance document contains a dispute resolution policy. (See A-10). Underthe dispute resolution policy, "when disputes occur regarding the acceptance ofa proposed comprehensive fix, or a modification thereto before thR.fix is consideredsatisfactory, the PI and the pertinent regulated entity may request that the issue be resolved at the next level of management within the FAA." The guidance document specifically states that "this procedure will provide for an independent assessment ofthe areas in disagreement." 

## <!!t} On January 25, 2008, Cooper sent a letterto GoJet"s Chief Operating Officer in regards to this and one other incident. (See A-6; See also TR 55:5-8) In his letter, Cooper instituted a February 8, 2008 deadline for GoJetto implement his proposed comprehensive fix. (See A-6; See also TR 86:8-13)At no time did Cooper indicate the opportunity for GoJetto request review ofthe facts and circumstances ofthe case tothe next level ofmanagement within the FAA in accordance with the FAA's published and publicly available dispute resolution policy. (See TR 121: 4-8) Cooper instigated no actions against the mechanic who allegedly leftthe gearpin in otherthan to issue a warning notice. (TR 66: 8-22; 67: 3-10; 68: 17-18) 

### III. ARGUMENT Based upon the evidence and testimony presented atthe hearing, the FAA has not established a violation ofthe Federal Aviation Regulations ("FARs"). However, even ifthis Court believes that the FAA has provided sufficient evidence to establish a violation ofthe FARs, the evidence which is being used to support said violation(s) was gathered by improper means and admitting said evidence is againstthe FAA's own published and publically available guidance. Additionally, there should be no finding of

6a violation in this case because the FAA's bringing ofthis enforcement action is in direct conflict with the FAA's published guidance documents and is on its face arbitrary and capricious, and an outrageous abuse ofdiscretion. 

### A. THE EVIDENCE PRESENTEDBY,.THE FAA FAILS TO ESTABLISH.

__. VIOLATIONS OF THE REGULATIONS CITED IN THE FAA'S COMPLAINT. Except in the case ofan affirmative defense, the Agency carries the burden of proofto prove the agency's case by a preponderance of reliable, probative, and substantial evidence. Respondentwhole heartedly disagrees with the Agency's position thatthe undisputed testimony establishes that GoJet's maintenance control improperly deferred the left side window and therefore the alleged violations ofthe FARs have been established. 

### 1. 43. 13(a) (by virtue of

### 43. 13(c))

- Performance Rules forMaintenance, Preventative Maintenance, Rebuilding andAlternation UnderSection 43.13(a), each person performing maintenance, alteration, or preventative maintenance on an aircraft

...shall use methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructionsfor Continued Airworthiness prepare by its manufacturer, orother methods, techniques, and practices acceptable to the Administrator, except as noted in 43.16. He shall usethetools, equipment, and test apparatus necessary

### to assure completion ofthe

### work in accordance with accepted industry practices

.... Section 43.13(c) contains special provisions for holders ofaircarrier certfficates and operating certfficates issued underthe provisions of Part 121

... Unless otherwise notffied bythe administrator, the methods, techniques, and practices contained in the maintenance manual orthe maintenance part ofthe manual ofthe holderof

an air carrieroperating certfficate or an operating certfficate under Part 121

...constitute acceptable means ofcompliance with this section. 7

### In its brief, the Agency contends that is Manufacturers Maintenance Manual requires the Respondent to install a gear pin when jacking up the aircraft for maintenance. The Agencyfurther contends that "it 

### is axiomatic, and 

### the accepted industry practice, that the gear pinbe removed once themaintenance is complete" and therefore because,., Respondenfs mechanic admittedlyforgot to remove a gear pin after completing maintenance, the Respondentfailed to assure the completion ofthe work in accordance with accepted industry practices as required by Section 43.13(a). This assessment is contrary to the testimony at the hearing. Both the Agency's witness, Gary Cooper. and Respondent's witness. JeffCraig. (both 

### persons with 

### extensive aircraft maintenance experience)testified that the aircraft in question could 

### beflown with the gear pin in place. (TR 29: 15-21, 120: 12-21) In fact, GoJet has done so in the past. (TR: 120: 12-21) Absentadditional evidence, thefact that the gear pin was left in alone, does not establish bya preponderance of reliable, probative, and substantial evidence that Respondent violated Section 43.13(a) ofthe Federal Air Regulations.



### 2. 121. 153(a)(2), 

### ofthe FederalAviation Regulations Basedon Its Operation 

### of N151 GJ While InAn UnairworthyCondition. Section 121.153(a) provides in relevant part that no certificate holder may operate an aircraft unless that aircraft

... (2) is in airworthy condition and meets the applicable airworthiness requirements ofthis chapter, including those relating to identification and equipment. The Agency argues in its briefthat it is uncontested that Respondent operated N151GJ on a passenger carrying operation with a gear pin erroneously left in the

8aircraft which triggered a geardisagree warning message upon gear retraction on climb out. The Agency further contends that this warning caused the crew enough concern regarding N1S1GJ's airworthiness that they immediately abortedthe operation and had ·,-the aircraft**inspection;c.~Which** gives arise to the assumption that**the~air..craft.must** bave

..

been unairworthy. The Agency relies on its exhibit A-1, Aircraft Maintenance Flight Log 37951, to support this contention. Exhibit A-1 only shows thatthe crew returned to Sl Louis for some reason. Further, while the crew may have been concerned that does not mean that the aircraftwas actually in an unairworthy condition. As noted in Section 1 above, witnessesfor boththeAgency and Respondent testified thatthe aircraft could safely 

### beoperated with thegearpin installed. Withoutfurtherevidence ortestimony, ExhibitA-1 alone does

### not establish by a preponderance ofreliable, probative, and substantial evidencethat Respondent violated Section 121.153(a) ofthe Federal Air Regulations. 

### 3. 91. 13(a) ofthe FederalAviation Regulations By 

### OperatingAnAircraftin 

### a Careless Manner

### SoAs to Endangerthe Life andProperty

### ofOthers. Section 91.13(a) provides that "no person may operate an aircraft in a careless or reckless mannerso asto endangerthe life orpropertyofanother." In noway, doesthe testimony and/orevidence produced support a finding that GoJet operated an aircraft in a

mannerwhich endangered the lives and propertyofits 

### crfN.I, passengers, and others. The Agency's own primarywitness testified thatthis airplane flying with the gearpin installed is not an unairworthy condition, it isjustsubjectto restrictions, and in no case would it constitute a careless manner. GoJefs Chief Inspectortestified that notonlycan the airplane in question beflown with 

### its gear pins 

### down but it has been flown underthose circumstances on morethan one occasion. (TR 120: 12-21, 121: 1-3) This uncontroverted

9

### evidence fails to establish by a preponderance ofreliable, probative, and substantial evidence that Respondent violated Section 91.13(a) ofthe Federal Air Regulations. 

## B. THE FAA CANNOT USE DATA OBTAINED FROM A VALID VOLUNTARY DISCLOSURE TO BRING AN ENFORCEMENT ACTION AND DOING SO CONSTITUES AN,ARBITRARY AND CAPRICOUS ACTION.BY THE.AGENCY",,

__. As part ofthe VDRP. the FAA has agreed to issue a letterofcorrection in lieu of a civil penalty action for covered instances ofnoncompliance that are voluntarily disclosed to the FAA in accordance with AC 00-58A2. (See A-11) AC OO-S8A specifically states that ''the FAA ordinarilywill notforgo legal enforcement action if

### the certificate holder informs the FAA ofthe apparent violation during, or in anticipation of, an FAA investigationfmspection or in association 

### with an accident or incident". There are only two exceptions specifically noted in the published guidance. First, if

### the FAA learned ofthe violations via an ASAP report as described in the current edition ofAC 120-66. 

## O!t.) Second, if

### violation was discovered either bythe company ora memberofthe FAA during avoluntarilyjoint audit Neitherof which applyto the facts in this case. 

## O!t.) In order to avail itself of the immunity provided in AC 00-588 the carrier must demonstrate that 

### it complied with the terms ofthe program. That means the carrier must demonstratethat: (1) the certificate holder immediately notified the FAA ofthe violation afterthe violation was detected and before the FAA had learned of the apparent violation through another means; (2) the violation was inadvertent; (3) the apparent violation does not indicate a lack of qualification, or a reasonable question ofthe qualification, ofthe certificate holder; (4) upon discovery ofthe violation, 

### immediate action was taken to correct orterminate the conduct that caused the apparent violation; and (5) the certificate holder has developed or is developing a comprehensive fix and schedule of implementation satisfactoryto the FAA.

2 AC 00-58Awas the Advisory Circular in existence atthe time ofthis incident. AC 00-588 is the current form. 10

### In this case, it is undisputed that as a Part 121 carrier GoJet is covered underthe VDRP ifthe above referenced conditions are met. GoJet contends that it has met each and

### '~~ery**~~;~ithe'above** referenced conditions and is entitled to'the promised

# immunityfrom

a legal enforcement action. Respondent believes thatthere is no dispute that GoJet has met conditions (1) through (4). The issue in this case revolves around the comprehensive fix requirement. The FAA contends that Respondent did not submit an acceptable comprehensive fix and therefore the voluntary disclosure was rescinded and this enforcement action was initiated. Respondent contends that it submitted an appropriate comprehensive fix and Cooper's unHateral decisionto rescind the voluntary disclosure and initiate this enforcement action ratherthan allowthe next level ofmanagementwithin the FAAto review the comprehensive fix is a violation of

### the FAA's published guidance documents and is therefore an arbitrary and capricious action bythe agency. Pursuantto the FAA's published guidance document, 

### ifthe Company does not demonstrate under surveillance thatthey are complying with the Comprehensive,F,ix, then the Letter ofCorrection may 

### be rescinded and appropriate enforcement may be 

### taken. (TR 80:12-18) In,the present case no agreement on a comprehensive fix

### was every made between GoJet and the FAA. erR 80: 20-22; 115: 15-18} Additionally, Cooper never notified GoJet of his decision to rescind the VDRP and institute an enforcement action priorto the January25, 2009 letter. erR 115:19-22 -116:1-3). Yet, on February 15, 2008, Cooper rescinded the voluntary disclosure and assigned EIR Number2008CE030045 to this matter. GoJet submitted acomprehensive fix which it 

### r'easonably believed would resolve the issue which gave rise to this action. Cooperwas the sole decision makerwithin the FAA

11who felt that fix was unacceptable. Ratherthan discuss otheroptions and workwith the carrier to come up with a mutually agreeable comprehensive fix as the VORP provides he simply issued an ultimatum that it was his way orthe highway. When GoJetdid not comply ,he instigated these enforcement proceedings.and is now using the information which GoJet voluntary divulged to the F

### M underthe VORP asthe basis forthis enforcement action. 3 As a general rule, decisions ofan administrative agency as to whetherto conduct an enforcement proceeding for a violation of its organic statute or regulations issued there under is a matter that is not reviewable by the courts and, a fortiori, by an agency tribunal. However this discretion is not unlimited. Multiple cases have explored 

### the idea that when the F

### M has issued an official program document, such as AC 00-58A, inviting parties subject to its jurisdiction to confess their violations in return for more favorable prosecutorial treatment, the agency should 

### be held to 

### its commitment jfthere is no sound reason for it to have refused or rescinded the bargain. See In MatterofStebbins Aviation, Inc., FAA Order No. 2006-3; In re Bevil Hart, FAA Docket No. CP89SW0455; In Matter ofBoston-Maine Airways, OMS No. FAA-2007-0366. 1\' Additionally, the Administrative Procedure Act ("APA") prohibits all federal agencies from acting in a mannerthat is arbitrary and capricious. See 5 U.S.C. §706(2)(A) 'While the general rule is that an agency's decision as to how orwhether 

### itwill prosecute is a decision generally committed to an agency's absolute discretion, courts have found an abuse of

3 Cooper's supervisor, Dean Adam, testified at the hearing that he agreed with Cooper's decision to issue the letter dated January 25th• (TR 102: 15-22, 103: 1-6) However, at his deposition taken on June 11, 2010, when Mr. Adam was provided with a copy published, publicly available guidance document in regards to the VDRP, Mr. Adam stated that he had never seen the document before. Further, Mr. Adam testified that there is no process or documents in place at the St. Louis FSDO office to provide inspectors guidance on howto handle either a voluntary disclosure or an ASAP Report. (Depo. Dean Adam 8-10)

12prosecutorial discretion in rare situations where 

### it has been shown that the agency's action is arbitrary, capricious, or otherwise not in accordance with law." See FAA v. David 

### E. Cohen, FAA DOcket No. CP93WP0030 at 8. In Matter**orBosfon~Maine** Airways, AU

. Benkin specifically stated that: to allow the Complainant [the FAA] to initiate a civil penalty claim against a Respondent [Carrier} who had fully complied with the requirements of AC 00-58A [now AC oo-58B], in violation of its clear· and unmistakable promise that such respondents 

### "will receive a letter of correction in lieu of civil penalty action for covered instances of noncompliance that are voluntarily disclosed to the FAA" would sanction lawless behavior that epitomizes action that is arbitrary and capricious. See Boston-Maine Airways Corp., at 10. Based upon the rationale ofALJ Benkin's decision in In re Boston-MaineAirways Corp., allowing the FAAto pursue this enforcement action against GoJetwhich is based entirely upon information obtained from the carrieron the beliefthatthey would be provided with immunityfrom an enforcement action is the epitomy ofarbitrary and capricious and should not be condoned bythe 

### Court. CLOSING ARGUMENT The Agency has failed to establish by a preponderance of reliable, probative, and substantial evidence that Respondentviolated the Federal Air Regulations and their request for a civil penalty should be denied. In the alternative, even 

### ifthis Court believesthatthe Agency has establish aviolation(s), Respondent has established bya preponderance of reliable, probative, and substantial evidence that Respondent is entitled to the affirmative defense that the Agency's actions are arbitrary and capricious. Respondent is entitled tothe immunity protections contained in the VDRP as described and maintained in the FAA's published and publicly available guidance documents. The purpose ofVDRP is to

13encourage the self-disclosure ofviolations ofthe Federal Aviation Regulations in orderto promote better compliance with FAA regulations, foster safety, and better develop IEPs. When the carrieroremployee has fully complied with the program yet the FAA usesthe information to instigate a civil penaltyaction, th.e.FAA arbitrary and capricious manner and any such enforcement action must be dismissed.

Dated: February 

# 14 ,2011

14 David J.A. Hayes, "' Es

. Vice President & General Counsel Trans States Holdings, Inc. 11495 Navaid Rd., Ste. 340 Bridgeton, MO63044 Phone:**314~222-4316** Fax: 314-222-4311 dhayes@transstates.net Attorney for Respondent "GoJet Airlines, LLC**~.,** ; .,.. ,I hereby certify that a copy of the foregoing Post-Hearing Brief, Closing Argument and Renewed Motion for Judgmentwas sent this 

# 14-+t- day of 

# kbtt**j~** , 2011, via as indicated below, to thefollowing: Original & One Copy: via U.S. Mail, aILpostage.pre-paid. Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building - Suite 2W1000 One Copy: Via Email and US. Mail, aU postage pre-paid. David B. Kessler Office of Regional Counsel Central Region, ACE-7 Federal Aviation Administration 901 Locust, Room 506 Kansas City, MO 64106-2641 Via FedEx. The Honorable Richard C. Goodwin, ALJ Office of Hearings. M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. East Building Ground Floor, RoomE12-320 Washington, DC 20590

15