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DEPARTMENT OF^ 

.:^fiy§y9SMS||Sl- DEPARTMENT OF TRANSPORTATIO 

V (LI L rCflMIIUI^^QER^L AVIATION ADMINISTRATION 

201! FEB 25 P 3= 03 WASHINGTON, DC 

-RECEIVED 

FEB 2 2 201! 

HEARING DOCKET 

IN THE MATTER OF 

GOJET AIRLINES LLC 

(Windshield Ice) 

FAA Docket No. CP10CE0004 

DMS No. FAA-2010-0190 

Judge Richard C. Goodwin 

RESPONDENT GOJET AIRLINES LLC'S 

POST HEARING BRIEF. CLOSING ARGUMENT. 

AND RENEWED MOTION FOR DECISION 

COMES NOW Respondent GoJet Airlines LLC, by and through its counsel of 

record, in accordance with the Law Judge's Post Hearing Order dated August 25, 2010 

as amended by Order dated February 4, 2011 and pursuant to the Rules of Practice in 

FAA Civil Penalty Actions (14 C.F.R. § 12.230(c)) and hereby submits this Post Hearing 

Brief, Closing Argunnent and Renewed Motion for Decision. 

I. 

STATEMENT OF THE CASE 

The Federal Aviation Administration (hereafter the "FAA") initiated this action 

against GoJet Airlines LLC (hereafter "GoJef or "Respondent") on or about Febmary 

17, 2010. (Docket Id FAA-2010-0190-001) The FAA takes the position that GoJet 

violated multiple sections of the Federal Air Regulations ("FARs") based upon the fact 

that GoJet allegedly improperly deferred the pilot's left windshield anti-ice controller and 

failed to address a discrepancy for the left side window heat system. (See Agency's 

Brief 1|10) The FAA has requested that this Court enter an order assessing Respondent 

a Civil Penalty in the amount of Fifty Thousand Dollars ($50,000.00) for said violations. 
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(See Agency's Brief T|15) GoJet filed its Answer denying the allegations on or about 

March 12, 2010. (Docket Id FAA-2010-0190-004) In addition, on or about August 11, 

2010, GoJet filed its Motion for Decision and Memorandum in Support (Docket Id FAA2010-0190-008). A hearing was held on this matter on August 25, 2010. On November 

18, 2010, the Agency filed its Post Hearing Brief and Closing Arguments.^ 

II. 

STATEMENT OF CONTROVERTED FACTS 

GoJet is the holder of Part 121 Air Carrier Certificate Number N6WA249L. (See 

Complaint T|l 1.1) At all relevant times, GoJet was the operator of aircraft N155GJ, a 

Canadair CRJ-700 Regional Jet, Model CL-600-2C10, registered as an aircraft available 

for use in Part 121 revenue operations. (See Complaint HI 1.2) 

On May 31. 2008, GoJet operated N155GJ on Flight 5365 from Lambert 

International Airport, St. Louis, Missouri (STL) to Denver International Airport, Denver 

Colorado (DEN). (See A-21) During the flight, N155GJ experienced an in-flight 

discrepancy for the pilot's left side window heat. (]d.) The discrepancy was indicated 

on the Flight Log by the Captain that the displayed message was "L Window Heat 

Caution." (jd) The pilot indicated that the message was Intermittent during flight. (Id) 

In response. GoJet's Maintenance Controller, Ernie Spencer, authorized that the pilot's 

windshield anti-ice controller on aircraft N155GJ be deferred pursuant Deferred 

' On a procedural note, Respondent would like to point out that that Agency's brief fails to comply with § 

13.231(c) of the Investigative and Enforcement Procedures in that it fails to include proposed findings of 

fact and conclusions of law. 
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Maintenance Item ("DMI") 5909 in accordance with Minimum Equipment Listing ("MEL") 

item 30-41-01 ^ (jd.) 

Subsequent to Flight 5365, GoJet operated N155GJ on Flight 5393 from DEN to 

Gerald F, Ford International Airport, Grand.Rapids, Ml <GRR), (See A-23) Upon 

reaching GRR, the Captain noted in the Flight Log "pilot's left side window caution 

message intermittent during flight." (]d) This Captain was not the same person as the 

Captain who originally flew the aircraft from STL to DEN. (See A-21& A-22: TR 192: 7-

11) In this instance the Captain wrote up that the window was the issue rather than the 

windshield as it was originally wrote up. (Id) On-demand maintenance personnel at 

GRR also entered a discrepancy in the Flight Log that the "L window Heat Caution 

Message Intermittent in Flight Ref DMI 5909." (jd) 

While on the ground in GRR, an operational check was perfonned of the side 

window anti-ice controller and it was determined to be fully operational, (jd) At that 

time maintenance performed an operational check of the left windshield anti-ice 

controller. (Jd) The operational check was normal and the system operated normally 

and therefore it was determined to be in accordance with CRJ 700MM 30-41-00 and 

DM! 5909 was cleared. (Id; See also A-22) GoJet flew only one flight with the item 

deferred. (TR 171:20-22. 172:1) 

The pilot who flew the flight from DEN to GRR submitted an Aviation Safety 

Action Program ("ASAP") Report in accordance with Advisory Circular ("AC") 120-66A^. 

2 CL-600-2C10 is an aircraft which the certificate holder is authorized to use an approved MEL. MEL 30-

41-01 states that one windshield and side window anti-ice controller may be inoperative provided: (a) 

operations are not conducted in known or forecast icing conditions, and (b) Pilot's (Left) side window 

heating is operative. See A-23. 

^ See Court Exhibit 1 (hereafter C-1). AC 120-66A is the Advisory Circular which was in existence at the 

time of the alleged incident. The current form is AC 120-66B. 
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read this document prior to signing. (TR 179: 5-7) During the course of this meeting of 

the ERC it was brought to Cooper's attention that on May 31, 2008 GoJet allegedly 

improperiy deferred the pilot's windshield anti-ice controller on aircraft N155GJ. (See R2) 

Immediately following the meeting of the ERC, based upon the information which 

he learned and documents he reviewed during the meeting, Cooper sought out GoJet's 

Chief Inspector, Jeff Craig, and asked to interview Ernie Spencer the maintenance 

controller involved in this incident. (TR 157: 3-11; 179: 19-22; 180: 21-22; 181: 1-5) 

Craig allowed Cooper to interview Spencer in his office. (TR 157:9-11; 183:12-15) 

During this interview Spencer advised Cooper that based upon conversations with the 

Captain and on-demand maintenance personnel who examined the plane he was able 

to determine that the pilot's windshield heat was the problem and therefore, in his 

opinion as an experienced maintenance controller, the windshield was deferrable 

pursuant to MEL 30-41-01. (See R-2) After interviewing Spencer, Cooper went back to 

his office and initiated an Enforcement Investigation Report ("EIR") FAA Case 

#2008CE030141. (TR 158: 7-10) 

Following this incident, Cooper discussed with Craig, the need for additional 

personnel in the GoJet Maintenance Department. (Seg R-2) Cooper informed Craig 

that if GoJet increased the number of maintenance controllers or hired a supervisor that 

possibly the FAA could close the enforcement action that had been initiated (FAA Case 

# 2008CE030141 out with a Letter of Con-ection. (TR 202; 10-17, See ajso R-2) In 

response, Craig sent Cooper a letter with a request to schedule a meeting to discuss 

this situation. (TR 202: 18-21; See also R-2) Rather than schedule a meeting. Cooper 
^ DMS I21005/014 

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1. 91,213(a)(3)(n) - Inoperative Instruments and Equipment. 

Section 91.213(a) states that "except as provided in paragraph (d) of this section, 

no person may take off an aircraft with inoperative instruments or equipment installed 

unless the following conditions are met: (1) an approved Minimum Equipment List exists 

for that aircraft, (2) the aircraft has within it a letter of authorization issued by the FAA 

Flight Standards district office having jurisdiction over the area in which the operator is 

located, authorizing operation of the aircraft under the Minimum Equipment List. The 

letter of authorization may be obtained by written request of the ainvorthiness certificate 

holder. The Minimum Equipment List and the letter of authorization constitute a 

supplement type certificate for the aircraft, and (3) the approved Minimum Equipment 

list must.. .(ii) provide for the operation of the aircraft with the instruments and 

equipment in an inoperable condition. 

There are no allegations in this case that GoJet violated either parts (1) or (2) of 

§ 91.213(a). Rather the Agency alleges that the MEL did not provide for the operation 

of the aircraft with the equipment in an inoperable condition. (See Agency Brief II.A) 

However, in order to establish a violation, the Agency must prove two things; (1) that 

GoJet operated the aircraft with the equipment inoperable and (2) that the MEL did not 

provide for the operation of the aircraft with the equipment in inoperable conditionIn regards to the first issue, the Agency's own expert witness testified that his 

understanding of an intermittent message is that the item works part of the time and part 

of the time it doesn't and is not a complete failure. (TR 188:19-22,189:1-4) Under this 

logic, the equipment was not inoperable and therefore there is no violation. 

Second, in regards to whether the item was or was not a deferrable Item, GoJet 

agrees with the Agency that on May 31, 2008, GoJet operated aircraft N155GJ and 

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02/25/201 1 15:0 3 FAX 2024935142 FAA 

according to the logbook page the crew encountered a "L window heat caution message 

intermittent in-flight." (See A-21; Agency's Brief § II.A. ^1) However, the testimony at 

the hearing does not support the Agency's characterization that this means "the left side 

window on the pilot's side heat is not working properly" which was an. improper deferral, 

because based upon GoJet's MEL requires that the pilot's left side window heating be 

operative. (See Agency's Brief § II.A) In support of this position, the Agency cites to 

portions of the hearing transcript (TR 140: 21-22. TR 141:1) in which Cooper testified 

about an Engine Indication Crew Alerting System ("EICAS") message for the left side 

window on the pilot's side. However, these alleged EICAS messages which formed the 

basis for Cooper's opinion that the message was actually referring to left side window 

heat were not introduced as evidence at the hearing, (TR 190:1-22, 191: 1) Rather, the 

Agency provides only Cooper's word as to the content of the EICAS messages. 

MEL 30-41-01 provides that the window and side window anti-ice controllers of 

the aircraft may be deferred if (a) operations are not conducted in known or forecast 

icing conditions, and (b) the Pilot's (Left) side window heating is operative. (See A-23) 

The original discrepancy was listed as "L window heat caution message intermittent inflight." (See A-21) Jeff Craig, GoJet's Chief Inspector, testified that the maintenance 

controller does not see the log pages when making the determination as to whether an 

item is deferrable or not. (TR 224:16-22, 225:1-6). Rather, his decision is based off of 

the description provided by the pilot or maintenance personnel on the ground. (TR 225: 

7-11) Based upon the description that Spencer was provided at the time, and the 

description that is contained in the logbook page which has been introduced into 

evidence. Spencer believed that he was properly deferring the left window. 
+ nM<? 121007/014 

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applicable airworthiness requirements of this chapter, including those relating to 

identification and equipment- To support its claim of a violation of this section, the 

Agency's position is that "due to the fact that N155GJ's pilot's left side window heat was 

inoperable, "the window could continue to fog, the heat would not prevent,that, the pilot 

may not be able to see out of that window." (See Agency Brief II.C) Further, the 

Agency contends that "the unrefuted expert testimony was dear "It's not airworthy if it 

doesn't work." (id.) 

Again, these conclusions misconstrue the testimony and evidence put forward at 

the hearing. First, as fully detailed in Section 1 above, there was insufficient evidence 

produced by the Agency to establish that at the time of the deferral the item which may 

have been malfunctioning was actually the "pilot's (eft side window heat". The 

discrepancy that was written up by the pilot was "L window heat caution message 

intermittent in-flight." (See A-21). Secondly, as again detailed more fully in Section 1 

above, the Agency's own expert witness testified that his understanding of an 

intermittent message is that the item works part of the time and part of the time it 

doesn't and is not a complete failure. (TR 188:19-22,189:1^). 

For these reasons, the testimony and evidence presented is insufficient to 

establish a violation of Section 121.153(a)(2) and therefore there should be a finding of 

no violation. 

4. 121.605 - Airplane Equipment 

Section 121.605 provides that no person may dispatch or release an airplane 

unless it is airworthy and is equipped as prescribed in § 121.303. To support its 

purported violation of § 121.605 the Agency states that "the undisputed testimony 

reflects that GoJet dispatched N155GJ after the window was improperly deferred and 

u 
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was unairworthy as noted above." (See Agency Brief II.D) Again, as detailed above, 

these conclusions are unsupported by the testimony and evidence produced at the 

hearing. Because the Agency has not met its burden to prove that the item was 

improperly deferred there can be no fiading of a violation of §121.605,. 

5. 91,13(a) - Careless or Reckless Operation 

Section 91.13(a) provides that "no person may operate an aircraft in a careless 

or reckless manner so as to endanger the life or property of another." In no way, does 

the testimony and/or evidence produced support a finding that GoJet operated an 

aircraft in a manner which endangered the lives and property of its crew, passengers, 

and others. Again, as detailed above, the FAA has not established by a preponderance 

of evidence that the pilot's window heat was inoperable. Both discrepancies noted that 

the caution message was intermittent. (See A-21 and A-24) The Agency's own expert 

witness testified that his understanding of an intermittent message is that the item works 

part of the time and part of the time it doesn't and is not a complete failure. (TR 188:19-

22,189:1-4) Even if the message referred to the pilot's window (which GoJet disputes 

that the evidence establishes that it does not) No evidence was presented that the 

window ever fogged so as to prevent the pilot from seeing out of that window, thus it 

must have been working correctly. 

B. THE FAA CANNOT USE DATA OBTAINED FROM A SOLE-SOURCE 

REPORT SUBMITTED PURSUANT TO THE ASAP PROGRAM TO BRING AN 

ENFORCEMENT ACTION. 

1. The information which Cooper used in order to initiate his investigation 

came from a sole source report and cannot be used to initiate an 

enforcement action and therefore should be excluded from ffiese 

proceedings. 

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The FAA's own published and publically guidance, as set forth in AC 120-66B.4.p. 

(See C-1), instnjcts that a report shall be considered a "Sole-Source Report" when "all 

evidence of the event available to the FAA outside of ASAP is discovered by or otherwise 

predicated on the ASAP report," -The AC 120-66B furtJier,notes in 4.q. that; 

sufficient evidence means evidence gathered by an investigation not caused 

by, or otherwise predicated on, the individual's safety related report. There 

must be sufficient evidence to prove the violation, other than the individual's 

safety-related report. In order to be considered sufficient evidence under 

ASAP, the ERC must determine through consensus that the evidence (other 

than the individual's safety- related report) would likely have resulted in the 

processing of a FAA enforcement action had the individual's safety related 

report not been accepted under ASAP. Accepted ASAP reports for which 

there is sufficient evidence will be closed with administrative action. 

(Jd) "Non-sole-source reports included in ASAP with sufficient evidence.. .to support a 

violation of 14 CFR will be closed with administrative action. Non-sole-source reports 

without sufficient evidence to support a violation of 14 CFR will be closed with a FAA Letter 

of No Action." (jd.) "Those sole-source reports that are included in ASAP will be closed with 

no action." (Id.) 

In this case FAA Inspector Cooper testified, and set forth in his Inspector's 

Statement, that he did not know about the details of this incident until the ASAP Meeting on 

June 12, 2008. (TR 157: 3-11,179:19-22,180: 21-22, 181:1-5; See also R-2). The 

infomnatran which he obtained during the meeting and the documents which he reviewed 

were then used to immediately initiate an enforcement action. (TR 153:22,154:1-7,178: 2-

19) Despite the Agency's attempt to dodge this fact at the hearing, during the course of the 

investigation, Cooper dkl not obtain any information that was not predicated upon the ASAP 

report. Based solely upon the information he learned via the ASAP meeting, which he 

agreed to keep confidential, Cooper went back to his office and began an enforcement 

proceeding against GoJet (TR 158; 7-10,169: 5-22,182; 18-22; See. also R-1) 

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2. Bringing an enforcement action based upon information that was 

voluntarily disclosed in the ASAP Program is a direct violation of the 

FAA's published guidance and therefore arbitrary and capricious, and 

an abuse of discretion. 

As noted above, the FAA's own published guidance specifically provides that "neither 

the written ASAP report nor the content of the written ASAP report will be used to initiate or 

support company discipline or as evidence for any purpose in an FAA enforcement action 

except as provided in 11c(2). (TR 174: 22, 175: 1-6; See also A-26 and C-1) As a general 

rule, decisions of an administrative agency as to whether to conduct an enforcement 

proceeding for a violation of its organic statute or regulations issued there under is a matter 

that is not reviewable by the courts and, a fortiori, by an agency tribunal. However this 

discretion is not unlimited. 

Multiple cases have explored the idea that when the FAA has issued an official 

program document, such as AC 00-58B and/or 120-66B, inviting parties subject to its 

jurisdiction to confess their violations in retum for more favorable prosecutorial 

treatment, the agency should be held to its commitment if there is no sound reason for it 

to have refused or rescinded the bargain. See In Matter ofStebbins Aviation, Inc., FAA 

Order No. 2006-3; In re Bevil Hart, FAA Docket No. CP89SW0455; In Matter of BostonMaine Ainvays, DMS No. FAA-2007-0366. Additionally, the Administrative Procedure 

Act ("APA") prohibits all federal agencies from acting in a manner that is arbitrary and 

capricious. See 5 U.S.C. §706(2)(A) "While the general rule is that an agency's decision 

as to how or whether it will prosecute is a decision generally committed to an agency's 

absolute discretion, courts have found an abuse of prosecutorial discretion in rare 

situations where it has been shown that the agency's action is arbitrary, capricious, or 

otherwise not in accordance with law." See FAA v. David E. Cohen, FAA Docket No. 

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CP93WP0030 at 8. In Matter of Boston-Maine Airways, ALJ Benkin specifically stated 

that: 

to allow the Complainant [the FAA] to initiate a civil penalty claim 

against a Respondent [Carier] who had fully complied with the 

requirements of AC 00-58A [now AC 00-58B], in violation of its clear 

and unmistakable promise that such resp»ndents "will receive a letter 

of correction in lieu of civil penalty action for covered instances of 

noncompliance that are voluntarily disclosed to the FAA" would 

sanction lawless behavior that epitomizes action that is arbitrary 

and capricious. 

See Boston-Maine Airways Corp., at 10. 

In this case, as detailed in Section 1 above, the information contained in the ASAP 

report is the entire basis for the enforcement proceeding. By being invited into an ASAP 

meeting, signing a confidentiality agreement (a requirement to attend the meeting) and then 

leaving the meeting and literally immediately beginning an enforcement investigation is 

exactly the "lawless behavior that epitomizes action that us arbitrary and capricious". Based 

upon the rationale of ALJ Benkin's decision in In re Boston-Maine Airways Corp., allowing 

the FAA to pursue this enforcement action against GoJet which is based entirely upon 

infomnation obtained from aconfidential ASAP report which was filed and accepted in 

accordance with AC 120-66A is the epitomy of arisitrary and capricious and should not be 

condoned by the Court. 

D. ESTOPPEL 

This infomiation regarding this incident was voluntarily disclosed to Cooper during a 

confidential ASAP meeting. (TR 153:22,154: 1-7,157: 3-11,178: 2-19,179:19-22,180: 

21-22,181:1-5; See also R-2) Following that meeting, GoJet requested to file a voluntary 

disclosure pursuant to the VDRP in accordance with AC 00-58B (check Cite). (TR 232:11-

16) However, Cooper stated that GoJet could not since the FAA was already aware of ^ e 

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better develop Air Carrier Intemal Evaluation Programs (lEPs). When a earner or employee 

utilizes those programs for the purpose in which they are designed yet the FAA uses the 

information to instigate a civil penalty action, the FAA is acting in an arbitrary and capricious 

^ manner and any such enforcement action must be dismissed. Further,.in this case, 

Inspector Cooper expressly agreed to a confidentiality agreement to which he acted in direct 

violation of For these reasons, this Court must rule in favor of GoJet on all counts with a 

finding of no violation by GoJet. 

IB 
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Dated: February T\T201 V 1 

David J.A. Hayes, lll^q . 

Vice President & GeK^eral Counsel 

Trans States Holdings, 

11495 NavaidRd.,Ste. 340 

Bridgeton, MO 63044 

Phone; 314-222^316 

Fax: 314-222-4311 

dhayes(gtransstates.net 

Attorney for Respondent 

GoJet Airiines LLC 

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I hereby certify that a copy of the foregoing Post Hearing Brief and Closing 

Argument was sent this [MT day of February, 2011, as indicated below, to the 

following; 

Original & One Copy; via U.S. Mail, all postage pre-paid. 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk. AGC-430 

Wilbur Wright Building - Suite 2W1000 

One Copy: 

Via Email and US. Mail, all postage pre-paid. 

David B. Kessfer 

Office of Regional Counsel 

Central Region, ACE-7 

Federal Aviation Administration 

901 Locust, Room 506 

Kansas City, MO 64106-2641 

Via Federal Express 

The Honorable Richard C. Goodwin, ALJ 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave.. S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

20