# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-2719

___________________________ GoJet Airlines, LLC

lllllllllllllllllllll Petitioner

v.
Federal Aviation Administration

lllllllllllllllllllllRespondent

____________ Petition for Review of an Order of the Federal Aviation Administration

____________ Submitted: September 24, 2013 Filed: March 4, 2014

____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges.

____________ LOKEN, Circuit Judge Mechanics replaced a brake assembly on the main landing gear of a CRJ-700 airplane operated by GoJet Airlines, LLC. They installed gear pins to lock the assembly in place during repairs, as the manufacturer’s Aircraft Maintenance Manual instructed, but neglected to make an entry in the Flight Logbook that gear pins were installed and should be rem oved before flight, as Go Jet’s General Maintenance Manual required. One of the gear pins was not removed. Conse quently, after takeoffon the plane’s next flight, a warning lightalerted that the landing gear would not retract, and the pilots returnedto the departure airport.

GoJet immediately disclosed the gearpin error to the Federal Aviation Administration (“FAA”), invoking the agency’s Voluntary Disclosure Reporting Program (“VDRP”). Under the VDRP, the FAA will issue “a letter of correction in lieu of civil penalty action” if an air carrier voluntarily discloses regulatory violations and satisfies VDRP compliance requirements. One requirement is that the carrier develop and execute a “comprehensive fi x,” defined as “an action, or actions, proposed by the [air carrier] and accepted by the [FAA] to preclude recurrence of the apparent violation that has been voluntarily disclosed.” FAA Order No. 8900.1 CHG 0, at ¶¶ 11-4(B)(1), 11-5 (Sept. 13, 2007) ; FAA Advisory Circular No. 00-58A, at ¶¶ 4(b)(1), 6 (Sept. 8, 2006). 1

The FAA accepted the VDRP notification, GoJet submitted a proposed comprehensive fix, and FAA Inspector Gary Cooper rejected the proposal. When GoJet did not meet Cooper’s deadline to propose an acceptable alternative, the FAA commenced this civil penalty enforcem ent action. Cooper and GoJet’s chief inspector, Jeffrey Craig, testified at the administrative hearing. The FAA Acting Administrator ruled that GoJet violated F AA regulations when it failed to make the logbook entry and to remove the gear pin. GoJet petitions for judicial review, arguing it did not violate 14 C.F.R. §§ 91.13(a) a nd 121.153(a)(2) by carelessly or recklessly operating an unairworthy airplane, and proce dural error. We have jurisdiction to review this final agency action. See 49 U.S.C. § 46110(a); 5 U.S.C. § 704.

1 These Orders have since been s uperseded by FAA Advisory Circular No. 00-58B (Apr. 29, 2009), available at http://rgl.faa.gov/Regulatory_and_Guidance_ Library/rgAdvisoryCircular.nsf/list/A C%2000-58B/$FILE/AC%2000-58B.pdf; and by Order 8900.1, Vol. 11, Chap. 1, CHG 57 (June 7, 2011), available at http://fsims.faa.gov/ PICDetail.aspx?docId=8900. 1,Vol.11,Ch1,Sec1.
-2-In reviewing the Administrator’s decisi on, we accept as conclusive findings of fact that are supported by substantial eviden ce, that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” King v. NTSB , 362 F.3d 439, 444 (8th Cir. 2004); see 49 U.S.C. § 46110(c). We overturn nonfactual determinations only if they are “arbitrary, capricious, an abus e of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Edwards v. FAA , 367 F.3d 764, 767 (8th Cir. 2004). Agency action is arbitrary and capricious when the agency “relied on factors wh ich Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs contrary to the eviden ce before the agency, oris so implausible that it could not be ascribed to a diffe rence in view or the product of agency expertise.” Rochling v. De p’t of Veterans Affairs , 725 F.3d 927, 937 (8th Cir. 2013). Applying this deferential standard , we deny the petition for review.

I.

GoJet first argues that it did not commit violations of 14 C.F.R. § 121.153(a)(2), which prohibits operating an unairworthy ai rcraft, and 14 C.F.R. § 91.13(a), which prohibits “operat[ing] an aircraft in a carel ess or reckless manner so as to endanger the life or property of another.”

A. The Alleged Airworthiness Violation. 14 C.F.R. § 121.153(a)(2) provides that no air carrier “may operate an aircraft unl ess that aircraft . . . is in an airworthy condition and meets the applicable airworth iness requirements of” 14 C.F.R., Ch. I. The definition of an airworthy aircraft is well settled, a two-part test derived from the statutory requirements for the airworthiness certificate now found in 49 U.S.C. § 44704(d): an airplane must conform to the type certificate approved for that model

-3-aircraft and must be in a c ondition for safe operation. See14 C.F.R. § 3.5(a); Copsey v. NTSB , 993 F.2d 736, 738 n.1 (10th Cir. 1993). 2

The type certificate issued for each aircraft model includes the aircraft’s original design specifications and “terms required in the interest of safe ty,” including operating restrictions. 49 U.S.C. § 44704(a)(2)(B); 14 C.F.R. § 21. 41. As the CRJ-700 was designed with retractable landing gear, the type design required all landing gear to be operable. If a CRJ-700’s landing gear is inoperable, the airplane may not take off unless the FAA has issued the carrier an approved special operating protocol known as the Minimum Equipment List (“MEL”), which “constitutes an approved change to the type design.” 14 C.F.R. § 121.628(a)(2). 3 In this case, Craig admitted that GoJet had neither used nor complied with the restri ctions in an MEL. Cooper testified that the failure to observe MEL restrictions m eant the plane “would be flying not in the configuration with the certificate that was issued [by the FAA] for that aircraft,” making the plane “unairworthy.”

The Administrative Law Judge (“ALJ”), focusing on the second part of the airworthiness definition, found that the ri sk of landing an overweight airplane when the CRJ-700’s flight was aborted established that the airplane was not in a condition for safe operation, and was therefore unairworthy. The Administrator rejected GoJet’s administrative appeal on a different gr ound, concluding that the airplane was

2 49 U.S.C. § 44704 directs the FAA to issue a series of certificates to guarantee the safety of aircraft such as the CRJ-700 operating in this country. The “type certificate” approves its design specifications, the “production certificate” approves production in accordance with the approved de sign, and an “airworthiness certificate” approves each airplane produced. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 800-06 (1984).

3 For example, an MEL may a llow an air carrier to defe r repairs of an otherwise inoperable airplane until it can be flown to a place where repair is more feasible.
-4-unairworthy because, when flown with inope rable landing gear and without use of an approved MEL, it did not conform to its type certificate.

In its petition for judicial review, c iting testimony by Cooper and Craig that a CRJ-700 can be flown safely when gear pins were not removed, GoJet argues that substantial evidence does not support the AL J’s finding that the airplane was not in a condition for safe operation. This issue is not properly before us. We review only the Administrator’s final agency action, not portions of the ALJ’s decision the Administrator did not consider. See49 U.S.C. § 46110(a); IN S v. Orlando Ventura , 537 U.S. 12, 15 (2002); Simon v. Simmons Foods, Inc. , 49 F.3d 386, 389-90 (8th Cir. 1995). The Administrator concluded that GoJet’s plane was unairworthy because it did not conform to its type certificate, w ithout reaching the ALJ’s alternative ground. If we rejected the Administrator’s conc lusion, our proper di sposition would be to remand for agency consideration of the AL J’s alternative ground, not to address it ourselves. Orlando Ventura , 537 U.S. at 16-18; Erickson v. U.S. Postal Serv. , 571 F.3d 1364, 1371-72 (Fed. Cir. 2009). Thus, we do not consider this contention.

The Administrator’s ground for concluding that GoJet violated 14 C.F.R. § 121.153(a)(2) is not challenge d on appeal. That should be the end of the matter, but in any event we find no plain error on this administrative record. The Administrator’s written decision, and the FAA’s brief to this court, take the position that anytypecertificate nonconformity warrants a finding th at the air carrier violated 14 C.F.R. § 121.153(a)(2) by operating an unairworthy ai rcraft. That position finds support in Morton v. Dow , 525 F.2d 1302, 1307 (10th Cir. 1975). But as the record does not reveal all the conditions the FAA might c onsider type-certificate nonconformities, we neither approve nor reject this interpretati on of the regulation. Rather, we conclude that the type-certificate nonconformity in this case -- inoperable landing gear -- was so clearly related to safe operation of the airplane thata finding the airplane was not airworthy was clearly warranted based solely on this nonconformity. GoJet’s evidence that a CRJ-700 with fixed landing gear can be flown in compliance with its

-5-type certificate through the use of approve d MEL procedures is irrelevant because those procedures were not used. Accordingly, the Administrator did not err in determining that GoJet violated § 121.153( a)(2). “[A]irworthiness does not mean flyability.” Copsey , 993 F.2d at 739.

B. The Alleged Residual Violation. GoJet next argues the Administrator erred in ruling that GoJet carelessly or recklessl y operated the aircraft in violation of 14 C.F.R. § 91.13(a). Like the ALJ, the Admini strator concluded that careless or reckless operation was a residual violation of GoJet operating an unairworthy aircraft: “Once the agency shows that a respondent has operated an unairworthy aircraft,” the Administrator ruled, “a violation of Sec tion 91.13(a), follows as a residual violation, unless extraordinary circumstances are present.” 4 We upheld the finding of a § 91.13(a) violation predicated on violati ons of other regulations in Crawford v. Engen , 823 F.2d 201, 203-04 (8th Cir. 1987). Go Jet nonetheless argues that this case presented extraordinary circumstances b ecause the CRJ-700 could be safely flown with fixed landing gear and thus posed no actual danger to anyone’s life or property.

The Administrator’s decision that GoJe t failed to establish extraordinary circumstances was not arbitrary or capri cious. A violation of § 91.13(a) does not require proof of actual danger to lives or property; the potential for danger is enough. See Watkins v. NTSB , 178 F.3d 959, 962 (8th Cir. 1999), and cases cited. At the hearing, FAA Inspector Cooper explai ned how the operation of a CRJ-700 with inoperable landing gear posed potential dange r, including the danger associated with an overweight landing. The Administrator did not err in crediting this testimony and finding that GoJet violated 14 C.F.R. § 91.13(a).

4 The agency imposed no additional civil penalty for the residual violation.
-6-II.

GoJet argues the FAA erred procedura lly when Inspector Cooper unilaterally terminated the VDRP process and the agen cy commenced civil penalty proceedings. The first question -- not addressed by eitherparty -- is whether the FAA’s decision to terminate the VDRP procedure in a particular case is judici ally reviewable. The issue is not free from doubt. 5 The VDRP is an FAA policy, not a part of the agency’s procedural rules and substantive regulations . Significantly, the policy “pertains to an agency’s exercise of its enforcement disc retion -- an area in which the courts have traditionally been most reluctant to interfere .” Brock v. Cathedral Bluffs Shale Oil Co. , 796 F.2d 533, 538 (D.C. Cir. 1986) (Sca lia, J.), citing Heckler v. Chaney , 470 U.S. 821 (1985), and other cases. Subject to Equal Protection Clause constraints, a federal agency’s decision to commence a civil en forcement action is, like the charging decision of a criminal prosecutor, normally deemed to be unrev iewable because it is an action “committed to agency di scretion by law,” 5 U.S.C. § 701(a)(2).

This narrow “presumption of unreviewability” does not apply if “Congress has provided us with ‘law to apply,’” Heckler , 470 U.S. at 834, or if the agency has made clear its intent that a policy statement or set of enforcement guidelines impose binding limitations on the exercise of its enforcement discretion. CompareSouth Dakota v. Ubbelohde , 330 F.3d 1014, 1028-29 (8th Cir. 2003) (Corps of Engineers Master Manual is a binding policy statement), cert. denied , 541 U.S. 987 (2004), with Sec’y of Labor v. Twentymile Coal Co. , 456 F.3d 151, 158-59 (D.C. Cir. 2006) (Mine Act enforcement guidelines are not binding norms limiting agency discretion), and Cathedral Bluffs , 796 F.2d at 537-38 (same). In appl ying this standard, it is relevant whether the agency policy or procedural ruleat issue is “intended primarily to confer

5 For an example of the potential complex ity of such procedural issues, see Ass’n of Irritated Residents v. EPA , 494 F.3d 1027 (D.C. Cir. 2007).
-7-important procedural benefits upon individuals in the face of otherwise unfettered discretion.” Rochling , 725 F.3d at 939 (quotation omitted).

Here, the stated purpose of the VDRP is to encourage voluntary disclosure and compliance by advising certificate holders of circumstances in which the FAA will refrain from commencing civil penalty acti ons. The VDRP prescribes how the agency “will” proceed if it accepts a certificate holde r’s initial notice of apparent violation, language that implies the Program is intended to be binding. Ubbelohde , 330 F.3d at 1028. And the fact that the Administrator c onsidered the merits of GoJet’s procedural defense in this case, rather than rejecti ng it because the decisi on to commence a civil penalty proceeding is an unreviewable exerci se of enforcement di scretion, is further evidence the VDRP is meant to limit that discretion. In these circumstances, we conclude the agency has provided us with su fficient “law to apply,” that is, the FAA has made clear its intent that, when it accep ts a certificate holder’s notice of voluntary disclosure, the VDRP Program imposes binding limitations on how the agency will thereafter exercise its enforcement disc retion. Therefore, the Administrative Procedure Act’s presumption that agency actions are subject to judicial review applies, and we turn to the merits of GoJet’s procedural defense. See5 U.S.C. § 702; Ubbelohde , 330 F.3d at 1027. As the VDRP is a policy prescribing the agency’s procedures, not its substantive standards fo r enforcing the regula tions at issue, our review is for abuse of disc retion, deferentially bearing in mind that “administrative agencies should be free to fashion their ow n rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.” Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc. , 435 U.S. 519, 543 (1978) (quotation omitted); cf. Oberstar v. FDIC , 987 F.2d 494, 504 (8th Cir. 1993).

GoJet argues (as it did to the Administrator) that after rejecting a proposed comprehensive fix GoJet reasonably believe d would resolve violations it voluntarily disclosed, Inspector Cooper unilaterally terminated the VDRP process and initiated

-8-this enforcemen t action, arbitrarily denying GoJet an opportunity to pursue a discretionary administrative appeal the VDRP expressly authorizes:

When disputes occur regarding the acceptance of a proposed comprehensive fix . . . the principal inspector and the pertinent regulated entity may request that the issue be resolved at the next level of management within the FAA. This procedure will provide for an independent assessment of the areas in disagreement.

Order 8900.1 at ¶ 11-12; AC 00-58A at ¶ 13.

The hearing record reflects that Go Jet’s proposed comprehensive fix was simply to counsel the mechanic who had ma de inadvertent errors. By letter dated January 25, 2008, to GoJet’ s chief operating officer, In spector Cooper responded thatGoJet’s proposaldoes not preclude recurrence of this violation. The mechanic involved knew of the [General Maintenance Manual] requirement to make a logbook entry stating the landing gear pin was installed prior to this incident, and yet still forgot to make the entry. . . . 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.

The letter advised GoJet that “[f]ailure to provide a comprehensive fix acceptable to this office by the close of business on Fe bruary 8, 2008 will result in the selfdisclosures being closed out of the web based VDRP system and processed as enforcement[].” 6 Cooper testified that he suggested to Craig that a pin-removal checklist be added to the manual mechan ics consult during brake replacements.

6 The administrative record conclusively refutes GoJet’s assertion that Inspector Cooper unilaterally terminated the VDR P process -- his January 25 letter was reviewed by two supervisors.
-9-Unwilling to adopt this suggestion, GoJet offered no alternative for the FAA to consider, and made no attempt to seek review of the comprehensive fix dispute at the next level of FAA management.

In rejecting GoJet’s procedural defe nse, the Administrator noted the VDRP expressly provides that a proposed comprehensive fix must be “satisfactory to the FAA,” and must be “satisfactorily implem ented and completed,” before the FAA will close a VDRP case with no en forcement action. Order 8900.1 at ¶¶ 11-4(C), 11-11; AC 00-58A at ¶¶ 4(c), 12. 7 The Administrator rejected GoJet’s contention that Cooper did not permit GoJet to elevate its co mprehensive fix dispute to the next level of FAA management because Cooper’s January 25, 2008, letter gave GoJet an opportunity to elevate the dispute, but GoJet failed to ask Cooper or his supervisor for review at the next level. We agree.

Cooper’s letter clearly stated his positi on and gave GoJet a deadline to submit a satisfactory comprehensive fix or face en forcement action. When GoJet elected not to accept Cooper’s suggested comprehens ive fix, it knew the negotiations were deadlocked and the time to seek elevation of the dispute was at hand. Once Cooper’s deadline passed, the VDRP did not require further notice to GoJet before the FAA commenced a civil penalty action. GoJet simply failed to pursue the VDRP’s informal review procedure. In these circumst ances, deferentially reviewing the FAA’s adherence to VDRP procedures , we find no basis to concl ude that the agency abused

7 It is hardly surprising that a policy declaring when the FAA will not exercise its statutory discretion to commence en forcement proceedings requires that an informal resolution of the disclosed viol ations be to the agency’s satisfaction.
-10-its discretion in terminating this VDRP self-disclosure proceeding and commencing a civil penalty action.

For the foregoing reasons, we deny the petition for review.

______________________________

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