Voluntary Disclosure – GoJet v. FAA Case Study

Voluntary Disclosure – GoJet v. FAA Case Study

Proper aircraft maintenance requires attention to detail.  It is essential not only in the actual performance of tasks but in the associated records.  Checklists and other entries are part of an approved system of checks and balances to ensure that the work performed is compliant with the approved maintenance procedures.  This system drives all its participants toward decreasing non-conformities that impact airworthiness.  So what happens when despite all the checklists and sign-offs a step in the maintenance procedure goes missing?  The answer depends on who finds the error and how they choose to respond to it.

The Federal Aviation Administration seeks to encourage the prompt reporting of identified non-conformities by certain certificate holders through its Voluntary Disclosure Reporting System (“VDRP”).  Through VDRP a maintenance provider can self-disclose a potential non-conformity.  The advantage to self-disclosure is that the certificate holder will be issued a “letter of correction” rather than a “civil penalty action.”  The incentive is simple – encourage self-disclosure by those most likely to detect errors in exchange for a reduced regulatory penalty so the issue can be remedied quickly.

A recent decision involving the FAA’s Voluntary Disclosure Reporting Procedure (VDRP) illustrates how following each step in the VDRP process is just as important as following the maintenance manual.  The case is GoJet Airlines, LLC v. Fed. Aviation Admin. (8th Cir., 2014) decided March 4, 2014 by the US Court of Appeals for the Eight Circuit.  The facts involve GoJet’s failure to make a Flight Logbook entry in association with the repair of a main landing gear assembly.  GoJet installed a gear pin to lock the landing gear during repairs but neglected to note in the Flight Logbook that the pins were installed and needed to be removed before flight.  Without the notation the gear pin was not removed and the landing gear did not retract on takeoff.  The aircraft returned safely to the departing airport without incident.

GoJet argued that it did not commit violations of 14 C.F.R. Section 121.153(a)(2), which prohibits operating an “unairworthy” aircraft, or 14 C.F.R. Section 91.13(a), which prohibits operating and aircraft in a “carless or reckless” manner so as to endanger the life or property of another.  However, the type design for the aircraft (a CRJ-700) required all landing gear to be operable – in this instance retractable.  GoJet cited testimony that the aircraft could be flown safely with the landing gear pins in place as in use of a Minimum Equipment List (MEL) flight operation.  The FAA noted that an MEL was neither requested nor approved and as such the aircraft was operated outside of its certificate configuration.  This by definition means the aircraft is “unairworthy” because it did not conform to the type certificate.  The Court cited Copsey, 993 F.2d at 739, in concluding that “airworthiness does not mean flyability”.

The record also indicates that GoJet’s recommended comprehensive fix as part of the VDRP was “simply to counsel the mechanic who made the inadvertent errors”.  The FAA rejected this fix indicating that the proposal:

does 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 FAA inspector testifies that he suggested a “pin-removal checklist” be added to the maintenance manual that mechanics consult during repairs.  Apparently GoJet was unwilling to adopt this suggestion or propose an alternative.  The bottom line is that while the FAA’s suggestion appears on its face to be a recommendation for a “checklist to the checklist” approach, GoJet failed to follow the procedure available to seek out an acceptable remedy.

GoJet self-disclosed via the VDRP by submitting the required proposed comprehensive fix to the FAA for review.  However, the FAA rejected the proposed comprehensive fix and GoJet missed the stipulated deadline to propose an acceptable alternative.  In addition, GoJet failed to avail itself of a “next level” review available through the VDRP.  The VDRP is clearly laid out in Advisory Circular 00-58B Voluntary Disclosure Reporting Program.  It behooves certificate holders wishing to avail themselves of this program follow the procedure to the letter.

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