U.S. DEPARTMENT OF TRANSPORTATION PFOp!\/pP i 

FEDERAL AVIATION ADMINISTRATION F^iU-V^B—3 ^- '^i j 

WASHINGTON, D,C. ^^^ ' ' ^^^' 

HEARING DOCKET 

FAA Docket No. CP10CE0003 

DMS No. FAA-2010-0025 

Oral Arguments Requested'frl 

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IN THE MATTER OF 

GOJET AIRLINES, LLC 

(VD GEAR PINS) 

APPELLANT'S APPEAL BRIEF 

TO THE FAA DECISIONMAKER 

COMES NOW Respondent/Appellant GoJet Airlines LLC (hereafter "GoJet") by 

and through its undersigned Counsel and hereby submits this Appeal Brief pursuant to 

14 C.F.R. § 13.233(d) to the FAA Decisionmaker in connection with its appeal of the 

Initial Decision of Administrative Law Judge Richard C. Goodwin issued May 20, 2011 

in regards to the above captioned matter (hereafter "Initial Decision"). 

I. 

STATEMENT OF THE CASE AND REQUEST FOR ORAL ARGUMENTS 

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

enforcement action against GoJet on or about February 16, 2010. The FAA alleged that 

GoJet violated the § 43.13(a) by virtue of § 43.13(c), § 93.13(a) and § 121.153(a) of the 

Federal Air Regulations ("FARs") based upon the fact that GoJet's contracted 

maintenance personnel installed lock pins a/k/a gear pins in GoJet's aircraft 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 requested that this Court 
enter an order assessing GoJet a civil penalty in the amount of $33,000 for the alleged 

violations. GoJet filed its Answer denying the allegations and asserting certain 

affirmative defenses including the defense that the FAA's actions in rescinding its 

acceptance of GoJet's voluntary disclosure made in accordance with the Voluntary 

Disclosure Reporting Program ("VDRP") violated the FAA's own published guidance 

document and therefore constituted arbitrary and capricious action. 

A hearing was held on August 25, 2010 in St. Louis, Missouri. Following the 

submission of post hearing briefs by the parties, ALJ Goodwin issued his Initial Decision 

on May 20, 2011 finding that GoJet had violated §§43.13(c), 91.13(a), and 

121.153(a)(2) of FARs and assessing a civil penalty of $18,000 for these violations. 

GoJet timely filed its Notice of Appeal of this decision on May 26, 2011. On June 30, 

2011 an order extending the time to file this brief until August 11, 2011 was served on 

the parties. Pursuant to 14 C.F.R. § 13.233(h), GoJet is requesting oral arguments on 

this matter before the FAA decisionmaker. 

II. 

SPECIFIC OBJECTIONS TO THE INTIAL DECISION 

AND BASIS FOR APPEAL 

GoJet specifically objects to the Initial Decision on the following grounds and 

basis: 

1. The ALJ's findings of fact and conclusion of law that the FAA proved a 

violation of § 121.153(a)(2) is not supported by a preponderance of the 

evidence and is not in accordance with applicable law, precedent, and 

public policy. Specifically the weight of the evidence at the hearing 

established that the aircraft in question could be operated in a safe 

manner with gear pins installed. Further, there was no evidence other 

than mere speculation that the aircraft was in an unsafe condition at the 

time of the alleged violation. This evidence is not sufficient for the FAA to 

sustain its burden. 
2. The ALJ's findings of fact and conclusion of law that a finding of a violation 

of § 91.13(a) follows as a residual violation once the fact of that an 

unairworthy violation has been established is not supported by a 

preponderance of the evidence and is not in accordance with applicable 

law, precedent, and public policy. Specifically for the reasons specified in 

#1 above, the preponderance of the evidence did not support a finding of 

a violation of 121.153(a). Further, extraordinary circumstances exist 

which support a conclusion that a finding of careless and reckless 

operation is not warranted. 

3. The ALJ's findings of fact and conclusions of law in finding that FAA's 

actions in rejecting GoJet's voluntary disclosure and instituting this 

enforcement action were not arbitrary and capricious is not supported by a 

preponderance of the evidence and Is not in accordance with applicable 

law, precedent, and public policy. Specifically the Principal Maintenance 

Inspector's unilateral actions In rescinding the voluntary disclosure made 

by GoJet without notice deprived GoJet of the right to exercise its option to 

elevate the disagreement over the proposed comprehensive fix to the next 

level of management within the FAA as the FAA's own published guidance 

documents provide for which constitutes an arbitrary and capricious action 

and a violation of public policy. 

DISCUSSION 

A. STANDARD OF REVIEW 

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

proof to prove its case by a preponderance of reliable, probative, and substantial 

evidence. (14 C.F.R. §§ 13.233 and 13.224) A party may appeal the following Issues 

to the FAA decisionmaker: (1) Whether each finding of fact is supported by a 

preponderance of the evidence; (2) Whether each conclusion of law Is made In 

accordance with applicable law, precedent and policy; and (3) Whether the ALJ 

committed any prejudicial errors during the hearing that support the appeal. (49 C.F.R. 

§ 1503.657) The FAA decision maker may affinn, modify, or reverse the initial decision, 

make any necessary findings, or may remand the case for any proceedings that the 

FAA decisionmaker detemiines may be necessary. (14 CFR 13.233(j)) 

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B. ARGUMENT 

1. The Finding of a Violation of § 121.153(a)(2)-Operating an Aircraft In 

an Unairworthy Condition - Because An Aircraft With a Gearpin 

Installed in Error Is Not In a Condition for Safe Operation is Not 

Supported By the Preponderance of the Evidence and Not in 

Accordance with Applicable Law, Precedent and Public Policy. 

In his Initial Decision ALJ Goodwin found that "the agency [also] proved that 

GoJet violated §121.153(a)(2)-operating an aircraft In an unairworthy conditionbecause an aircraft with a lockpln^ installed in error is not in a condition for safe 

operation." (Initial Decision at 5) § 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. As noted by ALJ Goodwin, to be 

airworthy, an aircraft must 1) conform to a type of design approved under a type 

certificate or supplemental certificate and to Applicable Airworthiness Directives; and 2) 

be in a condition for safe operation. (Initial Decision at 5; citing American Air Network, 

Inc., FAA Order No. 2008-10 (October 7, 2008)). In support of his conclusion that 

GoJet did not operate the aircraft In a safe condition, ALJ Goodwin cited to testimony 

which showed that the aircraft risked returning from flight with a greater amount of fuel 

than normal which could lead to an unreasonable risk of accident. (Initial Decision at 5; 

citing Tr. 29). This finding of fact was not supported by a preponderance of the 

evidence. 

^ In his Initial Decision, AU Goodwin refers to a "lockpin". The trial transcript and exhibits refer to "gear pins". For 

the purposes of clarification these are referring to the same thing and this brief \Nill use the tern^ "gear pin(s)". 
At the hearing, the FAA's own witness, GoJet's Principal Maintenance Inspector 

Gary Cooper, testified regarding the implications of having a gear pin Installed In the 

aircraft. Cooper testified that having the gear pin installed would: 

"affect the aircraft as far as the weight restriction that should have been 

imposed upon the aircraft for taking off with the gearpins in. In this case 

it required the aircraft to return from flight with more fuel than what it 

would normally land with. It's a possibility that another landing, --another 

possibility for an accident to happen landing overweight possibly." (Tr. 

29:3-12) 

Yet in his very next response. Cooper himself testified that the aircraft can fly with the 

gear pins In if certain procedures are followed; a fact which was substantiated by 

GoJet's witness Jeff Craig, GoJet's Chief Inspector. (Tr. 29: 15-20; 120: 12-21) Mr. 

Craig also testified that GoJet has flown their aircraft and done so safely and in 

accordance with approved policies and procedures with the gear pins installed. (TR: 

120: 12-21) Without further evidence or tesfimony, mere speculation by the FAA's 

witness that'there "could" be risk of an accident does not establish by a preponderance 

of reliable, probative, and substantial evidence that the aircraft did not conform to the 

approved design and that it was in an unsafe condition at the time of the alleged 

violation. 

For these reasons, the ALJ's finding of fact is not supported by a preponderance 

of the evidence and his conclusion of law Is not made In accordance with applicable 

law, precedent, and public policy and therefore should be reversed. 

2. The Finding that a Violation of § 91.13(a)-Careless Operation-is 

Not Supported By the Preponderance of the Evidence and Not in 

Accordance with Applicable Law, Precedent and Public Policy. 

In his Inlfial Decision, ALJ Goodwin found that "a violation of § 91.13(a) was 

shown because the aircraft was operated following a faulty repair constituted a 
"careless operation" and a finding of careless or reckless operation of an aircraft 

amounfing to a violation of § 91.13(a) follows as a residual violation once the fact of an 

unairworthy violation has been established." It is undisputed by GoJet that the legal 

authority states that "absent extraordinary circumstances, careless or reckless operation 

follows as a residual violation once operation of an unairworthy aircraft is established." 

USAir, Inc., FAA Order No. 1992-20 (December 21, 1992). However in this case, for 

the reasons stated above the finding of operation In an unairworthy condition is not a 

proper finding. Further, extraordinary circumstances exist in which to negate this 

conclusion. 

§ 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, do the 

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

a manner which endangered the lives and property of Its crew, passengers, and others. 

As noted above, the FAA's own primary witness testified that this airplane flying with the 

gear pin Installed Is not an unairworthy condlfion, it is just subject to restrictions, and in 

no case would it constitute a careless manner. (Tr. 29) Further, GoJet's Chief 

Inspector testified that the aircraft In question can be flown with the gear pins Inserted 

and has done so, legally, under those circumstances on more than one occasion. (TR 

120: 12-21,121: 1-3) 

Therefore absent a finding of a violation of §121.153(a)(2) for the reasons set 

forth herein and above, there can be no finding of a violation of §91.13(a) and therefore 

the ALJ's finding of fact Is not supported by a preponderance of the evidence and his 
conclusion of law is not made in accordance with applicable law, precedent, and public 

policy and therefore should be reversed. 

3. The ALJ's Conclusion of Law that the Agency's Decision to Reject 

GoJet's Self-Disclosure and Proceed with Enforcement Action was 

Not Arbitrary and Capricious Is Not in Accordance With Applicable 

Law and Public Policy. 

In his Initial Decision ALJ Goodwin found that the FAA's decision to reject 

GoJet's self-disclosure was valid because: 

GoJet failed to implement all of the steps it set out for an appropriate 

"comprehensive fix" conforms to the procedures of the FAA's handbook. 

The inspector in charge of working with the carrier described to GoJet the 

steps to follow. The parties discussed the matter. GoJet declined to 

implement all the steps... 

(Initial Decision at 7) ALJ Goodwin also found that the FAA's action was also not 

arbitrary and capricious 

for the FAA to fail to specifically infonn GoJet of the VDRP's^ procedures 

for contesting an adverse decision. The VDRP does not obligate the 

agency to do so. Moreover, the responsibility falls on GoJet, having 

invoked the VDRP, to be aware of the Program's provisions. The carrier 

may not justly contend that the agency was obligated to Inform it of a 

certain VDRP provision when circumstances showed that it well knew 

others. It would be manifestly unfair and unreasonable to place such a 

burden on the agency. Indeed, a FAA-regulated air carrier such as GoJet 

should be responsible for awareness of the content of all agencygenerated documents which may affect it 

(Id.) 

^ VDRP refers to the Voluntary Disclosure Reporting Program. The FAA established the VDRP to provide 

an incentive to encourage carriers to voluntarily disclose violations of the Federal Aviation Regulations 

("FARs"). See AC-0058A. Under the VDRP, the FAA will forgo a civil penalty action when a violation of 

the FARs is promptly disclosed to the FAA and prompt corrective action is taken to ensure that the same 

or a similar violation does not recur. Id. The FAA has stated that it believes that the VDRP program will 

encourage compliance with the FAA's regulations, foster safe operating practices, and promote the 

development of the Internal Evaluation Programs (lEPs). Id^ 
Under 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^ . (Trial Exhibit A-11) AC 00-58A provides for 

immunity from an enforcement action If a violation is voluntarily disclosed to the FAA 

and certain criteria are met in regards to the violation. The disclosing 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. 

(Id.) 

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

VDRP If the above referenced conditions are meL The issue In this case revolves 

around the comprehensive fix requirement. AC 00-58A contains a specific dispute 

resolution provision In regards to comprehensive fixes. (AC 00-58A.13) Specifically, 

the advisory circular states that "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 FA. (Id.) As the AC notes, "this 

^ AC-0058A is the Advisory Circular which was in existence at the time of the alleged violation. The 

current form of the Advisory Circular is AC-0058B. 
procedure will provide for an independent assessment of the areas in disagreement." 

(Id.) 

The FAA contends that GoJet did not submit an acceptable comprehensive fix 

and therefore the voluntary disclosure was rescinded and this enforcement action was 

initiated. GoJet contends that it submitted an appropriate comprehensive fix and the 

FAA's unilateral 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.** 

GoJet submitted a comprehensive fix which it reasonably believed would resolve 

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

FAA who felt that fix was unacceptable^ Rather than discuss other options or work with 

^ GoJet does not argue that it is the FAA's burden to inform GoJet's of its right to appeal the PMI's 

decision to the next level of management or to elevate this case to the next level of management for 

review. Rather, it argues that by failing to notify it of the 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 next level of management within the FAA as the FAA's 

own published guidance documents provide for. 

5 In FAA V. GoJet Airlines, LLC, DMS No. FAA-2010-0190 (May 20, 2010), the ALJ found that Principle 

Maintenance Inspector Cooper had acted in an arbitrary and capricious manner as the agent of the 

administrator by abusing the provisions of the Aviation Safety Action Program ("ASAP") and using 

materials gathered through the program to begin an enforcement action even though the program's 

published guidance documents specifically provide that "neither the written ASAP report nor the content 

of the written ASAP report will be used to initiate or support company discipline or as evidence for any 

purpose in an FAA enforcement action except in very limited circumstances. This case is no different. 

When Inspector Cooper decided that his demands in regards to the comprehensive fix would not be meet 

he never notified GoJet of his decision to rescind acceptance of the voluntary disclosure in order to allow 

GoJet time to invoke the process of review, he simply withdrew the VDRP and proceeded to enforcement. 

(Tr. 85, 115-116). As ALJ Goodwin stated in his decision "the agency may not take away with one hand 

what it has given with the other." {Initial Decision, FAA-2010-0190 at 13). This decision should also 

cause the FAA decisionmaker to question Inspector Cooper's creditability which also played a role in the 

ALJ's Initial Decision in this matter. 
GoJet to come up with a mutually agreeable comprehensive fix as the VDRP requires 

the FAA to do Cooper simply Issued an ultimatum that the carrier would do as he 

ordered or he would process the case as a violation. When GoJet did not submit he 

instigated these enforcement proceedings and again used the information which GoJet 

voluntary divulged to the FAA under the VDRP as the basis for this enforcement action 

which in and of Itself Is arbitrary and capricious^. For these reasons, the FAA's actions 

In regards to this case are arbitrary and capricious and a violation of public policy and 

therefore the decision of the ALJ must be reversed. 

IV. 

RELIEF REQUESTED 

For the foregoing reasons, the ALJ's findings of fact are not supported by a 

preponderance of the evidence and conclusions of law are not made in accordance with 

applicable law, precedent, and public policy and therefore should be reversed. 

*The Administrative Procedures Act (APA), 5 U.S.C.S. § 706(2)(A), provides that a reviewing court shall 

hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.S. § 706(2)(A). This is the APA's 

catch-all provision governing the scope and standards of review, and the courts rarely draw any 

meaningful distinctions between acts that are arbitrary, capricious, or an abuse of discretion. Arbitrary, 

capricious, or an abuse of discretion review under § 706(2)(A) is routinely applied by the courts as one 

standard under the heading of arbitrary and capricious review. And it encompasses both review of the 

factual basis of an agency's action, and review of an agency's reasoning as distinguished from its 

factfinding. Moreover, the arbitrary and capricious standard governs review of all proceedings that are 

subject to challenge under the APA. Thus, if an action is subject to review under the APA, it does not 

matter whether it is a formal or informal adjudication or a fomial or informal rule-making proceeding-all 

are subject to arbitrary and capricious review under § 706(2)(A). Eagle Broad Group, Ltd. v. FCC. 563 

F.3d 543 (DC Cir. 2009); see also Butte Co. v. Hogen, 613 F.3d 190 (D.C. Cir. 2010) (holding that if an 

agency's decision is arbitrary, capricious, or an abuse of discretion, it must be set aside) 

10 
Dated: August 10, 2011 

David J.A. Hayes, III 

Vice President & General Counsel 

Trans States Holdings, Inc. 

11495 NavaidRd., Ste. 340 

Bridgeton, MO 63044 

Phone: 314-222-4316 

Fax: 314-222-4311 

dhayes@transstates.net 

Attorney for Respondent 

GoJet Airlines, LLC 

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I hereby certify that a copy of the foregoing Appeal Brief was sent this 10th day 

of August, 2011, via the methods indicated below, to the following: 

Original & Two Copies: via Federal Express 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

One Copy: 

Via Federal Express 

Charles Raley, Attorney 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

^JAJIJU? Ortuovchy 

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