02/25/201 1 15:3G FAX 2024935142 FAA * DMS @|001/008 

( \ DECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION ^^^ H ^ ' 

FEDERAL AVIATION ADMINISTRATION \ \ [RARING DOCKET 

WASHINGTON, D.C. 

IN THE MATTER OF 

GOJET AIRLINES, LLC 

(VD GEAR PINS) 

FAA Docket No. CP10CE0003 

DMS No. FAA-2010-0025 :; 

Judge; ALJ Richard C. Goddwin Jlco 

-:.ri I 

/ o 3 

RESPONDENT GOJET AIRLINES LLC'S ^0 ^g ^ 

POST HEARING BRIEF. CLOSING ARGUMENT. '^ §2^" ^ 

AND RENEWED MOTION FOR DECISION g ' ' 

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. 

I. 

STATEMENT OF THE CASE 

The Federal Aviation Administration (hereafter the "FAA") initiated this action 

against GoJet Airlines LLC (hereafter "GoJet" or "Respondent") on or about February 

16, 2010. The FAA alleges that GoJet violated 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 
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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 August 11, 2010, GoJet filed its Motion for 

Decision and Memorandum in Support on the basis that FAA is used evidence obtained 

via a voluntary disclosure filed by GoJet in accordance with the FAA's Voluntary 

Disclosure Program ("VDRP"). (Docket Id FAA-2010-0025-0010) 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.^ 

II. 

STATEMENT OF UNCONTROVERTED FACTS 

GoJet is the holder of Part 121 Air Carrier Certificate Number N6WA249L. (See 

Complaint nil.1) At all relevant times, GoJetwas the operator of aircraft N151G J, a 

Canadair CRJ-700 Regional Jet, Model CL-600-2C10, registered as an aircraft available 

for use in Part 121 revenue operations. (See Complaint ^11.2) 

On or about November 26,2007, GoJet's contracted maintenance personnel 

removed and replaced N151GJ'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 

' On a procedural note, Respondent would like to point out that that Agency's brief falls 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. 
02/25/2011 15:3G FAX 2024935142 FAA 

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 the 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." (|d) 

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 wrth 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) 

IIL 

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 PRESENTED BY 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 

Ainvortbiness 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 certificates and operating certificates issued under the provisions of Part 121... 

Unless otherwise notified 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 certificate or an operating certificate 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 

Respondent's 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 29:16-21,120:12-21) In fact, 

GoJet has done so in the past. (TR: 120:12-21) Absent additional 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 

N151GJ While In An Unain/vorthy Condition. 

Section 121.153(a) provides in relevant part that no certificate holder may 

operate an aircraft unless that aircraft... (2) is in ainworthy 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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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 00-58A^. (See A-11) AC 00-58A 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 investigation/inspection 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. (kL) 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. (!dL) 

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 earner 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 00-58B is the current 

form. 

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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 lEPs. 

When the carrier or employee has fijily complied witii the program yet the FAA uses the 

infomnation to instigate a civil penalty action, the FAA arbitrary and capricious manner and 

any such enforcemenrt action must be dismissed. 

Dated; February i ^ .2011 

David J.A. Hayes, III Esc 

Vice President & General Counsel 

Trans States Holdings, Inc. 

11495 Navaid Rd., Ste. 340 

Bridgeton, MO 63044 

Phone: 314-222^316 

Fax: 314-222-4311 

dhayes@transstates.net 

Attorney for Respondent 

GoJet Airiines, LLC 

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02/25/2011 15:37 FAX 2024935142 FAA . nM<: r^..n 

" ^ DMS @1008/008 

I hereby certify that a copy of the foregoing Post-Hearing Brief, Closing 

Argument and Renewed Motion for Judgment was sent this jM" day of 

l-d-Wtin^ l 2011. via as indicated below, to the following: 

Original & One Copy; via U.S. Mail, all postage.pre-paid. 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC^30 

Wilbur Wright Building - Suite 2W1000 

One Copy: 

Via Email and US. Mail, all 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 of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

"(fygAiUt ULUtiUiU 

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