IN THE MAnER OF 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

FAA Docket No. CP10CE0003. 

GOJET AIRLINES, LLC 

(VD GEAR PINS) 

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) 

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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 Order dated August 25, 2010 

as amended by Order dated February 4, 2011 and pursuant to the Rules of Practice in 

FAA Civil Penalty Actions (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 (hereafter the "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) by virtue of 43.13(c), 

91.13(a), and 121.153(a)(2) of the Federal Air Regulations ("FARs") based upon the fact 

that GoJet's contracted maintenance personnel installed lockpins in N151GJ's main 

landing gear while replacing the aircraft's number two 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 an 
order assessing Respondent a civil penalty in the amount of $33,000 for said violations. 

GoJet filed its Answer denying the allegations on or about March 12,2010. (Docket Id 

FAA-2010-0025-005) In addition, on or about August11,2010,GoJet filed 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-201 0-0025-001 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 

Agency filed its Post Hearing Brief and 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 of aircraft N 151 GJ, 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 or about November 26. 2007, GoJel's contracted maintenance personnel 

removed and replaced N151 GJ's number two 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 of the 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 brief fails to comply with § 

13.231 (c) of the Investigative and Enforcement Procedures in that it fails to include proposed findings of 

fact and conclusions of law. 

2 
Logbook 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 remove the lock pins from the MLG. (See TR 35~-18-19; See also A5}~As a result, GoJet aborted a subsequent totake~off of N:l51GJ.,(See_also A-1) 

After leaning of this incident, on the same day, GoJet's Chief Inspector Jeff Craig 

informed the FAA about the above described incident by filing a self-disclosure utilizing the 

Voluntary Disclosure Reporting Program ("VDRP") system, (See A-5; See also TR 36: 1-4, 

114:17-20). The FAA established the VDRP to provide an incentive to encourage carriers 

to voluntarily disclose violations and potential violations of the Federal Aviation Regulations 

("FAR"). (See TR 82:15-22, 83:1-4; See also A-10) Under the VDRP, the FAA will forgo a 

civil penalty action when a violation is promptly voluntarily disclosed to the FAA and 

corrective action is taken to ensure that the same or a similar violation does not recur. (See 

A-11) In order to qualify for the protections of the VDRP, the following fIVe conditions must 

be met: (1) the certificate holder must notify the FAA of the apparent violation immediately 

after detecting it and before ht Agency has learned of it by other means; (2) the apparent 

violation must be inadvertent; (3) the apparent violation must not indicate a lack, or 

reasonable question, of qualification of the certificate holder, (4) Immediate action, 

satisfactory to the FAA, was taken upon discovery to terminate the conduct that resulted in 

the apparent violation; and (5) the certificate holder has developed or is developing a 

comprehensive fix and schedule of implementation satisfactory to the FAA. (See A-11) 

There are six phases of the VDRP. Phase 1 consists of the carriers notification of 

the apparent violation to the FAA. (See A-11) During Phase 2 the FAA (via a PI) provides a 

response to the carrier's initial notification. C!!1) In Phase 3 the Carrier files a Written Report 

with the FAA. C!!1) After the Written Report is filed, during Phase 4, the Written Report 

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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 of a comprebensive fix.:in,phase 5 consists of the 

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 of the implementation period, the program 

concludes in phase 6 with the inspector signoff. ~) In addition, the information contained 

within the written report itself, the FAA's web-based system requires the input of the 

following infomlation in the Written Report Stage: a list of the specific FAA regulations that 

may have been violated; a description of the apparent violation, including the duration of 

time it remained undetected, as well as how and when it was detected; a description of the 

immediate action taken to terminate the conduct that resulted in the apparent violation, 

induding when it was taken, and who was responsible for taking the action; an explanation 

that shows the apparent violation was inadvertent; evidence that demonstrates the 

seriousness of the apparent violation and the regulated entity's analysis of that evidence; 

completion of a Risk Assessment Matrix to aid in evaluating the significance of the event; 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 and the subsequent self-audit; and finally, identification of the company 

official responsible for monitoring the implementation and completion of the comprehensive 

fix and the self audit. (!QJ 

4 
After 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 self disclosure. (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 FAA via 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 of the proposed comprehensive fix, outlining the planned corrective steps, 

the responsibilities for implementing those corrective steps, and at time schedule for 

completion of the fix. (See A-11) Based on the fact that the mechanic involved in the 

incident stated in an interview to the FAA that he knew he was supposed to make the 

required logbook entry but forgot, GoJet identified this as an isolated incident and not a 

systemic problem and proposed counseling and re-training of the 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 to the comprehensive fix because he did not 

believe the proposed comprehensive fix precluded a recurrence of this violation. (See 

TR 45: 18-21). Cooper believed that an appropriate comprehensive fix would be 

generation of an MX 43 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 what the 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). 

5 
The FAA's published and publicly available guidance document contains a 

dispute resolution policy. (See A-10). Under the dispute resolution policy, "when 

disputes occur regarding the acceptance of a proposed comprehensive fix, or a 

modification thereto before thR.fix is considered satisfactory, 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 of the areas in disagreement." <!!t} 

On January 25, 2008, Cooper sent a letter to 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 GoJet to implement his proposed 

comprehensive fix. (See A-6; See also TR 86:8-13) At no time did Cooper indicate the 

opportunity for GoJet to request review of the facts and circumstances of the case to the 

next level of management 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 left the gear pin in other than to issue a 

warning notice. (TR 66: 8-22; 67: 3-10; 68: 17-18) 

III. 

ARGUMENT 

Based upon the evidence and testimony presented at the hearing, the FAA has 

not established a violation of the Federal Aviation Regulations ("FARs"). However, even 

if this Court believes that the FAA has provided sufficient evidence to establish a 

violation of the FARs, the evidence which is being used to support said violation(s) was 

gathered by improper means and admitting said evidence is against the FAA's own 

published and publically available guidance. Additionally, there should be no finding of 

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a violation in this case because the FAA's bringing of this 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 of discretion. 

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

VIOLATIONS OF THE REGULATIONS CITED IN THE FAA'S COMPLAINT. 

Except in the case of an affirmative defense, the Agency carries the burden of 

proof to prove the agency's case by a preponderance of reliable, probative, and 

substantial evidence. Respondent whole heartedly disagrees with the Agency's position 

that the undisputed testimony establishes that GoJet's maintenance control improperly 

deferred the left side window and therefore the alleged violations of the FARs have 

been established. 

1. 43. 13(a) (by virtue of 43. 13(c)) - Performance Rules for Maintenance, 

Preventative Maintenance, Rebuilding and Alternation 

Under Section 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 Instructions for Continued 

Airworthiness prepare by its manufacturer, or other methods, techniques, and practices 

acceptable to the Administrator, except as noted in 43.16. He shall use the tools, 

equipment, and test apparatus necessary to assure completion of the work in accordance 

with accepted industry practices .... Section 43.13(c) contains special provisions for holders 

of air carrier certfficates and operating certfficates issued under the provisions of Part 121 ... 

Unless otherwise notffied by the administrator, the methods, techniques, and practices 

contained in the maintenance manual or the maintenance part of the manual of the holder of 

an air carrier operating certfficate or an operating certfficate under Part 121 ... constitute 

acceptable means of compliance with this section. 

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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 

Agency further contends that "it is axiomatic, and the accepted industry practice, that the 

gear pin be removed once the maintenance is complete" and therefore because,., 

Respondenfs mechanic admittedly forgot to remove a gear pin after completing 

maintenance, the Respondent failed to assure the completion of the 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. Jeff Craig. 

(both persons with extensive aircraft maintenance experience) testified that the aircraft in 

question could be flown 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, the fact that 

the gear pin was left in alone, does not establish by a preponderance of reliable, probative, 

and substantial evidence that Respondent violated Section 43.13(a) of the Federal Air 

Regulations. 

2. 121. 153(a)(2), of the Federal Aviation Regulations Based on Its Operation of 

N151 GJ While In An Unairworthy Condition. 

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 of this chapter, including those relating to 

identification and equipment. 

The Agency argues in its brief that it is uncontested that Respondent operated 

N151GJ on a passenger carrying operation with a gear pin erroneously left in the 

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aircraft which triggered a gear disagree 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 aborted the 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 that the crew returned to Sl Louis for some reason. Further, 

while the crew may have been concerned that does not mean that the aircraft was actually 

in an unairworthy condition. As noted in Section 1 above, witnesses for both the Agency 

and Respondent testified that the aircraft could safely be operated with the gear pin 

installed. Without further evidence or testimony, Exhibit A-1 alone does not establish by a 

preponderance of reliable, probative, and substantial evidence that Respondent violated 

Section 121.153(a) of the Federal Air Regulations. 

3. 91. 13(a) of the Federal Aviation Regulations By Operating An Aircraft in a 

Careless Manner So As to Endanger the Life and Property of Others. 

Section 91.13(a) provides that "no person may operate an aircraft in a careless or 

reckless manner so as to endanger the life or property of another." In no way, does the 

testimony and/or evidence produced support a finding that GoJet operated an aircraft in a 

manner which endangered the lives and property of its crfN.I, passengers, and others. The 

Agency's own primary witness testified that this airplane flying 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. GoJefs Chief Inspector testified that not only can the 

airplane in question be flown with its gear pins down but it has been flown under those 

circumstances on more than one occasion. (TR 120: 12-21, 121: 1-3) This uncontroverted 

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evidence fails to establish by a preponderance of reliable, probative, and substantial 

evidence that Respondent violated Section 91.13(a) of the 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 of the VDRP. the FAA has agreed to issue a letter of correction in lieu of a 

civil penalty action for covered instances of noncompliance that are voluntarily disclosed to 

the FAA in accordance with AC 00-58A2. (See A-11) AC OO-S8A specifically states that ''the 

FAA ordinarily will not forgo legal enforcement action if the certificate holder informs the FAA 

of the 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 of the violations via an ASAP report as 

described in the current edition of AC 120-66. O!t.) Second, if violation was discovered 

either by the company or a member of the FAA during a voluntarily joint audit Neither of 

which apply to 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 of the program. That means the carrier must 

demonstrate that: 

(1) the certificate holder immediately notified the FAA of the violation after the 

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 of the qualification, of the certificate holder; (4) upon discovery of the 

violation, immediate action was taken to correct or terminate the conduct that 

caused the apparent violation; and (5) the certificate holder has developed or 

is developing a comprehensive fix and schedule of implementation 

satisfactory to the FAA. 

2 AC 00-58A was the Advisory Circular in existence at the time of this incident. AC 00-588 is the current 

form. 

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In this case, it is undisputed that as a Part 121 carrier GoJet is covered under the 

VDRP if the above referenced conditions are met. GoJet contends that it has met each and 

'~~ery ~~;~ithe'above referenced conditions and is entitled to'the promised immunity from 

a legal enforcement action. Respondent believes that there 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 decision to rescind the voluntary disclosure and 

initiate this enforcement action rather than allow the next level of management within the 

FAA to review the comprehensive fix is a violation of the FAA's published guidance 

documents and is therefore an arbitrary and capricious action by the agency. 

Pursuant to the FAA's published guidance document, if the Company does not 

demonstrate under surveillance that they are complying with the Comprehensive,F,ix, then 

the Letter of Correction 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 prior to the 

January 25, 2009 letter. erR 115:19-22 -116:1-3). Yet, on February 15, 2008, Cooper 

rescinded the voluntary disclosure and assigned EIR Number 2008CE030045 to this matter. 

GoJet submitted a comprehensive fix which it r'easonably believed would resolve the 

issue which gave rise to this action. Cooper was the sole decision maker within the FAA 

11 
who felt that fix was unacceptable. Rather than discuss other options and work with 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 or the highway. When GoJet did not comply 

,he instigated these enforcement proceedings .and is now using the information which GoJet 

voluntary divulged to the F M under the VORP as the basis for this enforcement action.3 

As a general rule, decisions of an administrative agency as to whether to 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 jf there is no sound reason for it to 

have refused or rescinded the bargain. See In Matter of Stebbins Aviation, Inc., FAA Order 

No. 2006-3; In re Bevil Hart, FAA Docket No. CP89SW0455; In Matter of Boston-Maine 

Airways, OMS No. FAA-2007 -0366. 1\' 

Additionally, the Administrative Procedure Act ("APA") prohibits all federal agencies 

from acting in a manner that 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 or whether it will 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 how to handle either a voluntary disclosure or an ASAP Report. (De po. Dean Adam 8-10) 

12 
prosecutorial 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 of ALJ Benkin's decision in In re Boston-Maine Airways 

Corp., allowing the FAA to pursue this enforcement action against GoJet which is based 

entirely upon information obtained from the carrier on the belief that they would be provided 

with immunity from an enforcement action is the epitomy of arbitrary and capricious and 

should not be condoned by the Court. 

CLOSING ARGUMENT 

The Agency has failed to establish by a preponderance of reliable, probative, and 

substantial evidence that Respondent violated the Federal Air Regulations and their request 

for a civil penalty should be denied. In the alternative, even if this Court believes that the 

Agency has establish a violation(s), Respondent has established by a 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 to the 

immunity protections contained in the VDRP as described and maintained in the FAA's 

published and publicly available guidance documents. The purpose of VDRP is to 

13 
encourage the self-disclosure of violations of the Federal Aviation Regulations in order to 

promote better compliance with FAA regulations, foster safety, and better develop IEPs. 

When the carrier or employee has fully complied with the program yet the FAA uses the 

information to instigate a civil penalty action, 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, MO 63044 

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 Judgment was sent this 14-+t-day of 

kbtt j~ , 2011, via as indicated below, to the following: 

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 Fed Ex. 

The Honorable Richard C. Goodwin, ALJ 

Office of Hearings. M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, RoomE12-320 

Washington, DC 20590 

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