                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2719
                        ___________________________

                               GoJet Airlines, LLC

                             lllllllllllllllllllllPetitioner

                                           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 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. See 49 U.S.C. § 46110(a); 5 U.S.C. § 704.


      1
        These Orders have since been superseded 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 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); see 49 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 ascribed to 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.

                                            I.

        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




                                           -3-
aircraft and must be in a condition for safe operation. See 14 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



      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 design, 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 allow an air carrier to defer 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 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. See 49 U.S.C. § 46110(a); INS 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, 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; 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

                                          -5-
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 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 procedurally when Inspector Cooper unilaterally
terminated the VDRP process and the agency commenced civil penalty proceedings.
The first question -- not addressed by either party -- is whether the FAA’s decision to
terminate the VDRP procedure in a particular case is judicially 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 discretion -- 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) (Scalia, 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 enforcement action is, like the charging
decision of a criminal prosecutor, normally deemed to be unreviewable because it is
an action “committed to agency discretion 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. Compare South 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 applying this standard, it is relevant
whether the agency policy or procedural rule at issue is “intended primarily to confer




      5
       For an example of the potential complexity 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 actions. The VDRP prescribes how the agency
“will” proceed if it accepts a certificate holder’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 considered the merits of GoJet’s procedural
defense in this case, rather than rejecting it because the decision to commence a civil
penalty proceeding is an unreviewable exercise of enforcement discretion, is further
evidence the VDRP is meant to limit that discretion. In these circumstances, we
conclude the agency has provided us with sufficient “law to apply,” that is, the FAA
has made clear its intent that, when it accepts a certificate holder’s notice of voluntary
disclosure, the VDRP Program imposes binding limitations on how the agency will
thereafter exercise its enforcement discretion. 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. See 5 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 for enforcing the regulations at issue, our
review is for abuse of discretion, deferentially bearing in mind that “administrative
agencies should be free to fashion their own 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 believed would resolve violations it voluntarily
disclosed, Inspector Cooper unilaterally terminated the VDRP process and initiated



                                           -8-
this enforcement 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 GoJet’s proposed comprehensive fix was
simply to counsel the mechanic who had made inadvertent errors. By letter dated
January 25, 2008, to GoJet’s chief operating officer, Inspector Cooper responded that
GoJet’s 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 letter advised GoJet that “[f]ailure to provide a comprehensive fix acceptable to
this office by the close of business on February 8, 2008 will result in the self-
disclosures 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 mechanics consult during brake replacements.

      6
      The administrative record conclusively refutes GoJet’s assertion that Inspector
Cooper unilaterally terminated the VDRP 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 defense, the Administrator noted the VDRP
expressly provides that a proposed comprehensive fix must be “satisfactory to the
FAA,” and must be “satisfactorily implemented and completed,” before the FAA will
close a VDRP case with no enforcement 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 comprehensive 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 position and gave GoJet a deadline to submit
a satisfactory comprehensive fix or face enforcement action. When GoJet elected not
to accept Cooper’s suggested comprehensive 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 circumstances, deferentially reviewing the FAA’s
adherence to VDRP procedures, we find no basis to conclude that the agency abused




      7
        It is hardly surprising that a policy declaring when the FAA will not exercise
its statutory discretion to commence enforcement proceedings requires that an
informal resolution of the disclosed violations 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.
                      ______________________________




                                       -11-
