Here's the situation. A VFR pilot files an IFR flight plan. The controller sees VFR in the altitude, reads it as a request for "VFR on top," and "clears" the VFR pilot, who misses the nuance of the word "cleared." Something happens to get the FAA's attention - accident, pilot deviation, whatever - and an enforcement action is started for the deviation and for improperly operating in the IFR system. (That's how it happens, not some post-flight ramp check.) The Goodish opinion says, in essence, "don't expect any slack from us," and, instead of treating it under the Compliance Philosophy, treats it as an intentional violation. Once violated, the FAA refuses to accept the pilots ASRS report in mitigation for the same reason and imposes the penalty. Do you think the NTSB, or the courts if it gets that far, will reverse the FAA's decision based in a "serious challenge?"