Gojet Airlines, LLC v. Fed. Aviation Admin.

Decision Date04 March 2014
Docket NumberNo. 12–2719.,12–2719.
Citation743 F.3d 1168
CourtU.S. Court of Appeals — Eighth Circuit


David JohnArthur Hayes, III, Saint Louis, argued, MO, for Petitioner.

Charles Raley, Federal Aviation Administration, argued, Washington, DC, for Respondent.

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 removed before flight, as GoJet's General Maintenance Manual required. One of the gear pins was not removed. Consequently, after takeoff on the plane's next flight, a warning light alerted that the landing gear would not retract, and the pilots returned to the departure airport.

GoJet immediately disclosed the gear pin 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 fix,” 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 enforcement action. Cooper and GoJet's chief inspector, Jeffrey Craig, testified at the administrative hearing. The FAA Acting Administrator ruled that GoJet violated FAA 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) and 121.153(a)(2) by carelessly or recklessly operating an unairworthy airplane, and procedural error. We have jurisdiction to review this final agency action. See49 U.S.C. § 46110(a); 5 U.S.C. § 704.

In reviewing the Administrator's decision, we accept as conclusive findings of fact that are supported by substantial evidence, 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); see49 U.S.C. § 46110(c). We overturn nonfactual determinations only if they are “arbitrary, capricious, an abuse 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 which 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 evidence before the agency, or is so implausible that it could not be ascribedto a difference in view or the product of agency expertise.” Rochling v. Dep't of Veterans Affairs, 725 F.3d 927, 937 (8th Cir.2013). Applying this deferential standard, we deny the petition for review.


GoJet first argues that it did not commit violations of 14 C.F.R. § 121.153(a)(2), which prohibits operating an unairworthy aircraft, and 14 C.F.R. § 91.13(a), which prohibits “operat[ing] an aircraft in a careless 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 unless that aircraft ... is in an airworthy condition and meets the applicable airworthiness 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 aircraft and must be in a condition 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 safety,” 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 restrictions in an MEL. Cooper testified that the failure to observe MEL restrictions meant 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 risk 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 ground, concluding that the airplane was unairworthy because, when flown with inoperable landing gear and without use of an approved MEL, it did not conform to its type certificate.

In its petition for judicial review, citing 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 ALJ'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); INS v. Orlando Ventura, 537 U.S. 12, 15, 123 S.Ct. 353, 154 L.Ed.2d 272 (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, without reaching the ALJ's alternative ground. If we rejected the Administrator's conclusion, our proper disposition would be to remand for agency consideration of the ALJ's alternative ground, not to address it ourselves. Orlando Ventura, 537 U.S. at 16–18, 123 S.Ct. 353;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 challenged 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 any type-certificate nonconformity warrants a finding that the air carrier violated 14 C.F.R. § 121.153(a)(2) by operating an unairworthy aircraft. 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 consider type-certificate nonconformities, we neither approve nor reject this interpretation 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 that a 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 type certificate through the use of approved 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 recklessly operated the aircraft in violation of 14 C.F.R. § 91.13(a). Like the ALJ, the Administrator 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 Section 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 violations of other regulations in Crawford v. Engen, 823 F.2d 201, 203–04 (8th Cir.1987). GoJet nonetheless argues that this case presented extraordinary circumstances because 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 GoJet failed to establish extraordinary circumstances was not arbitrary or capricious. 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 explained how the operation of a CRJ–700 with inoperable landing gear posed potential danger, including the danger associated...

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