SERVED MAY 20, 2011 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

^^hlMENTOF 

;.^-i OPtRAlAjNS 

'. ': \f O "^ A 

c3 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

GOJET AIRLINES, LLC 

Respondent. 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

GOJET AIRLINES, LLC 

Respondent. 

FA A DOCKET No. CP10CE0003 

(Civil Penalty Action) 

DMS No. FAA-2010-0025 

FAA DOCKET No. CP10CE0004 

(Civil Penalty Action) 

DMS No. FAA-2010-0190 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: I) In Docket No. CP10CE0003: 

a) Respondent violated 14 C.F.R. §§43.13(c), 91.13(a), and 

121.153(a)(2) as charged; and 

b) Respondent is assessed a civil penalty of $18,000, 

2) In Docket No. CP10CE0004: 

The Complaint is dismissed. 
L Setting 

Complainant Federal Aviation Administration ("Complainant," "FAA," or 

"agency") brought charges against GoJet Airlines, LLC ("Respondent" or GoJet"), a Part 

121 air carrier of Bridgeton, MO, in the above-captioned matters. 

The cases are separate. They involve different circumstances. For administrative 

and judicial convenience, they were consolidated and heard one after the other. The 

hearings v^ere held on August 25, 2010 in St. Louis, MO. The parties filed briefs and the 

cases are each ready for decision. They will be decided seriatim.' 

For the agency to prevail, it must establish proof of the violations alleged by a 

preponderance of the reliable, probative, and substantial evidence (14 C.F.R. §§13.223 

and 13.224; Toyota Motor Sales, FAA Order No. 94-28, pp. 6-7,1994 FAA Lexis 275, p. 

10 (September 30,1994)). Complainant also bears the burden of proving the 

appropriateness of the civil penalty it suggests. Phillips Building Supply, FAA Order No. 

2000-20 (August 11, 2000), p. 8. The burden shifts to Respondent to prove any 

affirmative defenses it may assert. Continental Airlines, Inc., FAA Order No. 98-6 

(March 10, 1998), 1998 WL 231441, p. 8. 

II. Docket CP10CE0003 

A. Background 

The incident leading to the Complaint began on November 26, 2007, when GoJet 

contract maintenance workers removed and replaced the number two brake assembly on a 

Canadair CRJ-700 aircraft in the carrier's fleet. As part of the process, maintenance 

personnel had installed three landing gear pins, also known as lockpins, into the aircraft's 

left main landing gear. But the mandated logbook entry was not made, the Complaint 

asserts. Later in the procedure, the lockpins were to be removed. But the mechanics, the 

Complaint continues, failed to remove one of them. They also did not make the required 

logbook entry recording removal. 

The aircraft was returned to service in that condition. GoJet was forced to abort a 

subsequent operation because of a warning message during the process of gear retraction, 

the Complaint states - a direct result of the mechanics' failure to remove the one landing 

gear pin. 

Evidence adduced at the hearing showed that later that same day GoJet informed 

the FAA of these events under the agency's Voluntary Disclosure Reporting Program 

("VDRP" or "Program") (Tr. 114; Exh. A-5): The VDRP is a program designed to 

encourage regulated entities to volimtarily report apparent violations of FAA regulations. 

It also is set up to prevent a reoccurrence of the problems thus brought to its attention. 

' In each case, Complainant's Post-Hearing Brief will be referred to in the text as "Compl. Br."; 

Respondent's Post-Hearing Brief as "Resp. Br."; and Complainant's Rebuttal Brief as "Compl. Rebut' 
As codified in the then-current Advisory Circular ("AC") 00-58A, the FAA agrees to 

forego enforcement action for "covered instances of noncompliance." If the agency 

accepts the regulated party's application for inclusion in the Program, the entity will 

receive a letter of correction instead (Exh. A-10, p. 2; National Transportation Safety 

Board V. Moshea, 570 F.3d 349, 350 (D.C. Cir. 2009)). 

GoJet took the first step in the VDRP process by submitting an "initial 

notification." The FAA requires that an initial notification generally be submitted within 

24 hours of the discovery of the apparent violation. The notification is permitted to be as 

brief as a short statement of the salient facts of the misstep which are known at the time. 

The Program contemplates that additional time often is needed to fully flesh out the 

circumstances of the apparent violation as well as to fulfill other VDRP requirements. 

Among those additional requirements is the carrier's obligation to propose and 

implement a "comprehensive fix" in cooperation with the FAA. The VDRP makes clear 

that the FAA must be satisfied with the scheme and implementation of the fix for the 

carrier to remain in the Program and retain immunity from enforcement action. To that 

end, the agency reserves the right to rescind its acceptance of an initial notification (Exh. 

A-10). 

In this matter the agency conditionally accepted GoJet's initial notification (Exh. 

A-10; Tr. 88). However, the FAA ultimately determined that it was not satisfied with 

GoJet's subsequent corrective action. It rescinded its tentative approval. This 

enforcement action followed (Tr. 50-51). 

The agency charges Respondent with violating the following three Federal 

Aviation Regulations ("FARs"): 1) Section 43.13(a), which requires that maintenance be 

performed using the methods and practices prescribed in operative maintenance manuals; 

2) Section 91.13(a), which prohibits any person from operating an aircraft in a careless or 

reckless manner so as to endanger the life or property of another; and 3) Section 

121.153(a)(2), which obligates certificate holders to operate aircraft in an airworthy 

condition and meet all applicable airworthiness requirements. Pursuant to 49 U.S.C. § 

46301, the FAA seeks a maximum civil penalty of $11,000 per count, or a total 

assessment of $33,000. 

Respondent denies the charges. It also asserts as an affirmative defense that if, 

arguendo, the charges are proven, the matter nonetheless is subject to the VDRP. As 

such, an enforcement action may not proceed. 

The agency's action in rescinding its acceptance of GoJet's initial notification. 

Respondent charges, violated the agency's own published guidelines for the Program. As 

such. Respondent argues, the agency's action was arbitrary and capricious. It was 

therefore imlawful and may not stand. Failing to inform the carrier of the options 

available to it following the FAA's withdrawal of acceptance also violated the agency's 

guidelines. Respondent alleges, and similarly constituted reversible arbitrary and 

capricious conduct. In these circumstances, GoJet concludes that the enforcement action 

must be dismissed (Resp. Br., pp. 6, 11-14; Tr. 14-15). 
B. Discussion 

1. The Merits 

The FAA proved the facts underlying the charges. It showed that 1) Go Jetemployed maintenance personnel, in the process of replacing the number two brake 

assembly, failed to make a logbook entry required when installing lockpins; 2) 

Respondent improperly accomplished the maintenance by failing to remove a lockpin 

before completion; and 3) the carrier did not make the necessary logbook entry recording 

removal of the landing gear pins. 

The testimony and supporting documents of GoJet's principal maintenance 

inspector ("PMI"), Gary Cooper, established Complainant's proof I find that PMI 

Cooper was a credible witness. His testimony showed that on November 26,2007, 

maintenance personnel employed by GoJet rranoved and replaced a worn number two 

brake assembly on the subject aircraft. Part of the process necessitated the installation of 

three landing gear pins. The installation is supposed to be temporary. The lockpins must 

be removed prior to completion of the task. \\^en the initial flight following the 

maintenance generated a cockpit warning message upon gear retraction, the brake 

assembly was inspected and found to have one gear pin still installed. The pin should 

have been taken out. It could have remained, however, had an appropriate Minimum 

Equipment List ("MEL") entry been made. But the carrier had not used an MEL. As 

such, the repair had been accomplished improperly (Exhs. A-1, A-2, and A-3; Tr. 28-30, 

90-91,94,122). 

GoJet also admitted certain facts underlying the charges. The carrier's chief 

inspector, Jeffrey Craig, testified that the erring mechanic had acknowledged to him that 

he had mistakenly failed to pull one of the landing gear pins (Tr. 117-18). Respondent 

itself admitted as well that it had improperly failed to remove a lockpin. In its "initial 

notification," it stated that, following rq)lacement of the number two brake assembly, it 

had flown the aircraft while the left main landing gear pin mistakenly remained in the left 

main landing gear (Exh. A-5; Tr. 38). Another admission involved a failure to make a 

logbook entry as required. Respondent's General Maintenance Manual ("GMM") 

specifies that whenever landing gear pins are installed, an entry must be made in a 

maintenance logbook stating "Landing gear pin installed, remove before flight." But no 

such entry was made (Exhs. A-3 and A-4, Part 12.2; Tr. 33-35,77). The responsible 

mechanic acknowledged to PMI Cooper that he knew that he was supposed to make a 

logbook entry noting that the lockpins had been installed, but had forgotten to do so (Tr. 

69-71, 73; Exh. A-5, p. 5). 

Finally, Complainant proved that the required logbook entry noting the removal 

of all the landing gear pins had not been made.^ 

^ Exh. A-4; Tr. 35. The mechanic, of course, had not removed one of the lockpins. It is unclear whether he 

told inspector Cooper that the cause of his failure to remove it was because he had forgotten, but the 

circumstances so indicated. Tr. 73, 74. 
These facts make out the violations alleged. I find and conclude that the evidence 

proved that Respondent violated FAR §§43.13(c), 91.13(a), and 121.153(a)(2) as 

charged. 

Testimony and documentary evidence showed that GoJet, in performing the brake 

assembly replacement, failed to follow the procedures outlined in its GMM. As such, the 

agency proved a violation of §43.13(c)(5ee Tr. 76). The agency also proved that GoJet 

violated §121.15 3 (a)(2) - operating an aircraft in an unairworthy condition - because an 

aircraft with a lockpin installed in error is not in a condition for safe operation. To be 

airworthy, it has long been held, an aircraft must 1) conform to a type design approved 

under a type certificate or supplemental type certificate and to applicable Airworthiness 

Directives; and 2) be in a condition for safe operation. See, e.g., American Air Network, 

Inc., FAA Order No. 2008-10 (October 7, 2008), p. 25 n. 35; see also Tr. 30. Testimony 

showed that the aircraft risked returning from flight with a greater amount of ftiel than 

normal. Landing overweight leads to an imreasonable risk of accident (Tr. 29). An 

aircraft operating in these circumstances is not in a condition for safe operation and, by 

definition, cannot be considered airworthy. Finally, a violation of §91.13(a) was shown 

because the aircraft operation following the faulty repair constituted a "careless 

operation." A finding of careless or reckless operation of an aircraft amounting to a 

violation of § 91.13 (a) follows as a residual violation once the fact of an unairworthy 

operation has been established.' 

2. Respondent's Affirmative Defense 

a. Background 

We now consider Respondent's affirmative defense. The enforcement action 

must be dismissed on account of the carrier's disclosure under the VDRP, it contends 

{see I.D., p. 3). 

As we have seen. Respondent submitted a timely "initial notification" setting out 

the facts making out the FAR violations. PMI Cooper accepted it (Exh. A-5, pp. 1-2; Tr. 

38; I.D., p. 3). But inspector Cooper v^dthdrew the agency's approval of GoJet's selfdisclosure in light of GoJet's eventual refiisal to make certain changes Cooper thought 

necessary. Under VDRP procedures, the agency then had clearance to institute an 

enforcement action and did so (I.D., p. 3). 

Understanding the context and the implication of the parties' disagreement 

requires a fiiller exposition of FAA Order 8900.1 (Exh. A-10). Order 8900.1 is a set of 

guidelines the agency created for its inspectors to follow in carrying out the VDRP (Tr. 

' Ace Pilot Training, FAA Order No. 2005-12 (August 17, 2005), p. 9; USAir, Inc., FAA Order No. 1992-

70 (December 21, 1992), p. 6. 1 reject Respondent's assertion that Complainant failed to prove the 

violations because testimony established that the aircraft could have been flown safely, and in fact has 

operated, with a gear pin in place. Resp. Br., pps. 8-10. The argument is irrelevant to the charges. The 

relevant and probative evidence established the violations. 
43). It tracks the terms of the agency's AC 00-58A, which, as noted, contains the text of 

the VDRP (Tr. 53-54; Exh. A-11; I.D., p. 3). 

Order 8900.1 generally requires that the regulated entity's initial notification -

which may be oral, written, or elecfronic ~ be followed within ten days by a "written 

report." The written report must include a "detailed description" of steps the entity has 

made or plans to make in order to preclude recurrence of the violation(s) implicated in its 

initial disclosure. This portion of the report is called the "comprehensive fix." Order 

8900.1 assures that the investigating inspector will close out the matter with a letter of 

correction "following satisfactory development of a comprehensive fix and schedule of 

implementation agreed upon by the FAA and the entity" (Exh. A-10, p. 4 (^fl 1-7 of Order 

8900.1)). Order 8900.1 also unequivocally states that the comprehensive fix and 

implementation schedule must be "satisfactory to the FAA." (Exh. A-10, p. 2 (|11-7 of 

Order 8900.1); Tr. 47-48). 

Inspector Cooper set out a number of actions for GoJet to undertake by a date 

certain as part of the comprehensive fix he outlined for the carrier. The parties discussed 

the terms in a number of conversations. They eventually agreed to disagree. The carrier 

refused to implement each of inspector Cooper's instructions.'* Cooper concluded that the 

comprehensive fix had not been implemented. He withdrew the agency's approval of 

the carrier's self-disclosure. This action followed (Tr. 51,115). 

b. Standard of Review 

I find that the agency's ultimate decision to reject GoJet's self-disclosure and to 

initiate this enforcement action must be upheld unless it is found to be arbitrary, 

capricious, or otherwise unlawful. D & FAfonso Realty Trust v. Garvey, 216 F.3d 1191, 

1196-97(D.C. Cir. 2000). 

The discretion of an administrative agency in deciding whether to initiate an 

enforcement action generally is very broad. It is not absolute, however. When the FAA, 

as here, has invited entities subject to its jurisdiction to "confess" wrongdoing in return 

for the agreement to forgo enforcement action, considerations of fairness and honest 

dealing suggest that the agency should be held to its end of the bargain. This idea in fact 

finds expression in the Administrative Procedure Act ("APA"). The APA prohibits 

federal agencies such as the FAA from acting in a manner that is arbitrary and 

capricious.' Further support for reviewing the agency's action under the "arbitrary and 

capricious" standard is foxmd in cases in which FAA decisions were overturned as 

arbitrary and capricious because the agency's challenged determination had ignored 

procedures and guidelines set out in its own handbooks. D & FAfonso Realty Trust v. 

Garvey 216 F.3d 1191,1196-97 (D.C. Cir. 2000); BFI Waste Systems of North America 

* Exh. A-5, p. 5; Exh. A-10; Tr. 39,43-46. Inspector Cooper had proposed that GoJet amend its 

maintenance manual respecting brake-assembly maintenance by adding procedures for removing the 

lockpins after changing the brake. This the carrier refused to do. Tr. 46. 

' 5 U.S.C. §706(2XA). See discussion per administrative law judge Isaac D. Benkin in Boston-Maine 

Airways Corporation, Order Granting in Part and Denyingin Part Complainant's Motion for Simimaiy 

Judgment, 2208 WL 3485802 (August 8, 2008), pp. 2-4. 
V. FAA, 293 F.3d 527, 533 (D.C. Cir. 2002). Decisions of the FAA's sister agency, the 

National Transportation Safety Board, also have been reviewed under this standard in 

similar circumstances. See Copsey v. National Transportation Safety Board, 993 F.2d 

736 (10'" Cir. 1993). 

Against this background, I find that the agency's decision to reject GoJet's selfdisclosure and to proceed with enforcement action will be overturned only if it is 

determined to be arbitrary and capricious. 

c. Decision 

I conclude that the FAA's decision to ultimately reject GoJet's VDRP submission 

and to institute enforcement action was lawful. It will be upheld. It was not arbifrary and 

capricious in this case for the FAA to take such actions. 

The agency's decision to reject Respondent's self-disclosure because it concluded 

that Respondent failed to implement all of the steps it set out for an appropriate 

"comprehensive fix" conforms to the procedures of its handbook. The inspector in 

charge of working with the carrier described to GoJet the steps to follow. The parties 

discussed the matter. GoJet declined to implement all the steps. The VDRP makes plain 

that the agency must be satisfied with the fix, and may rescind its acceptance if it is not -

and may take such action even after it has issued a letter of correction and thereby 

presumably foreclosed enforcement action (Exh. A-10, p. 7, ^11-10). It was proper, then, 

for the FAA to pull its initial acceptance of GoJet's self-disclosure. The agency cannot 

be said to have failed to follow its own procedures.* 

Nor was it arbitrary and capricious for the FAA to fail to specifically inform 

GoJet of the VDRP's procedures for contesting an adverse decision. The VDRP does not 

obligate the agency to do so. Moreover, the responsibility falls on GoJet, having invoked 

the VDRP, to be aware of the Program's provisions. The carrier may not justly contend 

that the agency was obligated to inform it of a certain VDRP provision when 

circumstances showed that it well knew others. It would be manifestly unfair and 

unreasonable to place such a burden on the agency. Indeed, a FAA-regulated air carrier 

such as GoJet should be responsible for awareness of the content of all agency-generated 

documents which may affect it.^ 

* Respondent intimates that the VDRP requires the agency and the regulated entity to fashion a "mutually 

agreeable comprehensive fix." Resp. Br., p. 12. This is incorrect. While the Program encourages the 

parties to work together, the VDRP expressly permits the FAA to unilaterally impose a solution. The 

agency may withdraw its acceptance of the self-disclosure if— in its sole opinion ~ the fix it asked for was 

not properly or completely implemented. That is what happened here. See discussion in I.D., p. 3, and in 

the text above. 

I was not asked to, and do not, review the specific steps the FAA decided was necessary for a 

comprehensive fix. The agency is given substantial deference in such matters in view of its particular 

expertise. See, e.g.. Village of Bensenville v. FAA, "iie F.3d 1114, 1122 (D.C. Cir. 2004). 

^ Cf. Ace Pilot Training, FAA Order No. 2005-12 (August 17, 2005), pp. 7-8 (rejecting claim that it would 

be an unfair burden to place a duty on an owner or operator to review all airworthiness directives ("ADs") 

and to "bear primary responsibility" for AD compliance). 
For the reasons stated above, I find and conclude that Respondent has failed to 

prove its affirmative defense. I also deny Respondent's motion to strike {see Tr. 104-05, 

107) and its motion in support of its Motion for Decision {see Tr. 108-09). All other 

outstanding motions not specifically referenced are denied. 

C. Penalty 

Complainant has suggested that an assessment of $33,000 is warranted by the 

facts and circumstances of this case. I will assess a total civil penalty of $18,000. 

Complainant is obligated to consider the following factors when determining the 

civil penalty amount: (1) the nature and circumstances of the violation; (2) the extent and 

gravity of the violation; (3) the respond^it's degree of culpability; (4) the respondent's 

history of prior violations, if any; (5) the respondent's ability to pay the civil penalty; (6) 

the effect on the entity's ability to stay in business; and (7) other matters as justice may 

require. See, e.g., Folsom 's Air Service, Inc., FAA Order No. 2008-11 (November 6, 

2008), p. 11. The determination weighs whether the violation was inadvertent or 

deliberate, the private or public character of the violaticMi, and the attitude of the violator. 

The agency also considers the respondent's size, particularly in determining the 

offender's ability to absorb the sanction. An appropriate civil penalty must reflect the 

totality of the circumstances surrounding the violations. Eastern Air Center, Inc., FAA 

Order No. 2008-3 (January 28, 2008). Finally, the civil penalty should provide sufficient 

incentive to deter the respondent and similarly-situated entities from fiiture violations. 

Folsom's Air Service, Inc., Id, p. 20. 

Respondent's failure to remove a loclqjin produced an unairworthy aircraft. It 

created an unwarranted and substantial risk of danger to the flight and its crew and 

passengers. Additionally, GoJet's failure on two occasions to make a required log entry 

undermined the recordkeeping system that is the linchpin of FAA oversight and 

enforcement. Complete and accurate recordkeeping is essential for the FAA to fixlfill its 

mandate of assuring that operators comply with safety standards. See Watts Agricultural_ 

Aviation, Inc., d/b/a Growers Air Service, FAA Order No. 91-8 (April 11,1991). 

Such transgressions merit significant penalties. 

On the other hand, I find that there is no reason in this case to assess a separate 

civil penalty for the violation of FAR §91.13(a). As the Administrator has stated, this 

charge follows strictly as a residual violation once Complainant has established operation 

of an unairworthy aircraft unless "extraordinary circumstances" are present. Ace Pilot 

Training, FAA Order No. 2005-12 (August 17,2005), p. 9, quoting USAir, Inc., FAA 

Order No. 1992-70 (December 21,1992), p. 6. The record in this case does not show any 

extraordmary circumstances justifying a finding that GoJet independently violated 

§91.13 (a). As such, I decline to assess a civil penalty for this violation. 

Further, I find no justification in the record for Complainant's plea for a 

maximum civil penalty of $11,000 for each of the two remaining violations. 

Complainant asserted that maintenance compliance is a "systemic problem" at GoJet (Tr. 
95-96), but it furnished no evidence backing up the claim. It failed to show that 

imposition of the maximum levy is warranted. 

In weighing the facts and circumstances, I find and conclude that a civil penalty 

assessment of $18,000, or $9,000 per independent violation found, is appropriate. It is 

commensurate with the nature and extent of the violations. The assessment, I find, will 

promote adherence to the FARs and act as an appropriate deterrent to Respondent and 

similarly-situated entities. It suitably accounts for the totality of the circumstances of this 

case. 

All other arguments raised by either party do not warrant discussion. They have 

been considered and are rejected as without merit. 

GoJet Airlines, LLC is hereby assessed a civil penalty of $18,000 for violations of 

FAR §§43.13(c), 91.13(a), and 121.153(a)(2) as charged in the Complaint.* 

III. Docket CP10CE0004 

A. Background 

In this matter. Complainant charges that GoJet operated an aircraft in an 

unairworthy condition following improperly deferred maintenance. The agency claims 

that GoJet responded incorrectly after a discrepancy developed for the pilot's left side 

window heat system. The carrier subsequently operated after deferring, per its Minimum 

Equipment List, the pilot's left windshield anti-ice confroller. The deferral did not 

address the discrepancy, the Complaint states. Thus it was improper. Respondent's 

actions led to charges of five FAR violations. 

The Complaint contends that a) the deferral was accomplished confrary to the 

aircraft's operations specifications ("op specs"); b) the flight was conducted when the 

aircraft was not in an airworthy condition; and c) operating in an unairworthy condition 

constituted a careless act. The five violations GoJet is charged with are: 1) section 

91.213(a)(3)(ii), which prohibits takeoff with inoperative insttuments or equipment 

unless Minimum Equipment List requirements are met; 2) section 119.5(1), proscribing 

operations in violation of GoJet's op specs; 3) section 121.605, barring any person from 

' This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to 

sections 13.210, 13.211(e) and 13.233 of the Rules of Practice, which require that a notice of appeal 1) be 

filed not later than 10 days (plus an additional five days if mailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building—Suite 2W1000, or b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, D.C. 20591, Atta: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 
10 

releasing an airplane unless it is airworthy; 4) section 121.153(a)(2), prohibiting a 

certificate holder from operating an unairworthy aircraft; and 5) section 91.13(a), which 

prohibits operation of an aircraft in a careless or reckless manner so as to endanger the 

life or property of another. The agency asks for a civil penalty under 49 U.S.C. §46301 

of $50,000. 

Respondent denied the charges. Additionally, it asserts as an affirmative defense 

that if, arguendo, the charges are proven, GoJet nonetheless is immune from enforcement 

action because the matter is subject to the agency's Aviation Safety Action Program 

("ASAP"). ASAP is the pilots' counterpart to the VDRP {see I.D., pp. 2-3). hi bringing 

an enforcement action, the carrier asserts, the agency failed to follow its own guidelines. 

The guidelines obligated the FAA in this situation to forego enforcement action. The 

agency also gathered information by improper means, GoJet argues. Respondent 

concludes that these actions compel dismissal of the Complaint (Tr. 131-32; Resp. Br., p. 

7). 

B. Discussion 

1. The Merits 

The circumstances leading to this action unfolded during a GoJet flight from St. 

Louis to Denver on May 31,2008. The pilot, operating a Canadair CRJ-700 regional jet, 

received an intermittent message stating "L window heat caution." The message 

signified that, at least part of the time, the left side window heat system was not operating 

properly. The pilot called it in to maintenance officials as a discrepancy (Exhs. A-21, A22; Tr. 140-43, 147-48, 188,224-25). 

The left window is a panel to the pilot's left, approximately off the pilot's left 

shoulder. The left border of the window is at the 9 o'clock position (Exh. A-22, p. 3, 

notation "A;" Tr. 144). The left window is different from the left windshield. The left 

windshield is a panel to the immediate right of the left window and more directly m front 

of the pilot; the right border of the left windshield is at the 12 o'clock position (Exh. A22, p. 4, notation "A;" Tr. 143-46). A corrective action for the left window and a 

corrective action for the left vdndshield are not related (Tr. 156). 

Maintenance mechanics in Denver under contract to GoJet, pursuant to the 

instructions of the carrier's maintenance controller, Ernie Spencer, deferred the 

discrepancy in accordance with the carrier's Minimum Equipment List ("MEL") 30-41-

01 (Exh. A-21; Tr. 141,225,228). GoJet is authorized to use MELs by its op specs (Tr. 

171). MEL 30-41-01 is applicable both to the window and the windshield anti-ice 

controllers. There are four ofthese in total. The MEL terms allows one ofthe four to be 

inoperative so long as the "[pjilot's (Left) side window heating is operative." (Exh. A-23; 

Tr. 147). This directive means, as Respondent's PMI Cooper testified, that GoJet was not 

permitted to defer the left window heat system.' Maintenance personnel issued in terms a 

'Tr. 148, 151, 189. There is a good reason for this. Without heat, fog could form on the window. Fog 

would unacceptably inhibit, if not altogether prevent, the pilot's vision out the window. Tr. 151. 
11 

deferral for the left windshield anti-ice controller, but the effect was to defer maintenance 

on the left window heat system. This action, I find, was improper (Exh. A-24; Tr. 148, 

197). 

The deferral released the CRJ-700 for service (Tr. 151; Exh. A-2i). Later that 

same day the aircraft operated from Denver to Grand Rapids, MI. The pilot on this flight 

also received an intermittent caution message warning that the left side window heat 

system was not working properly (Exh. A-24; Exh. R-2; Tr. 149-50, 153, 190). This time 

maintenance personnel performed an "Ops check" on the left side window anti-ice 

controller. It checked out (Exh. A-24, corrective action 1; Tr. 150,230). GoJet also 

performed an Ops check on the left windshield anti-ice confroller. That checked out as 

well, and that action cleared the MEL (Exh. A-24, corrective action 2; Tr. 152, 197, 230). 

The next day, June 1, 2008, GoJet maintenance personnel corrected the actual 

discrepancy by exchanging the left window overhead sensor with the spare sensor (Exhs. 

A-24 and R-2; Tr. 198-99). 

As inspector Cooper concisely summed it up, GoJet "improperly deferred the 

pilot's windshield anti-ice confroller (MEL item 30-41-01)... although the discrepancy 

noted in the logbook (L Window Heat Caution) was for the pilot's (left) side window 

heat. The pilot's left side window heat is not deferrable according to GoJet's MEL." 

(Exh. R-2) (italics added). 

On this evidence the agency proved each ofthe violations alleged. FAR 

§91.213(a)(3)(ii) prohibits takeoff with inoperative instruments or equipment unless MEL 

requirements are met. Taking off v^th an inoperative left window heating system 

violated the regulation.'*^ The carrier also violated §119.5(1), which proscribes operations 

in violation of an aircraft's op specs. Since it is GoJet's op specs which authorize MEL 

use, an improper deferral violates the op specs (Tr. 171). FAR section 121.605 bars any 

person from releasing an airplane unless it is airworthy. The release ofthe CRJ-700 with 

a discrepancy in the left window heating system rendered the aircraft unairworthy. The 

discrepancy failed to meet either ofthe two prerequisites for airworthiness: the aircraft 

failed to conform to its type design, and it was not in a condition for safe operation. See 

Horizon Air Industries, Inc., FAA Order No. 95-11 (May 10, 1995), p. 12 n. 33. In any 

event an aircraft with an unresolved mechanical discrepancy cannot be considered 

airworthy. General Aviation, Inc., FAA Order No. 98-18 (October 9,1998), pp. 12-13. 

As PMI Cooper testified, "It's not airworthy if it doesn't work." (Tr. 151). Operating an 

unairworthy aircraft also constitutes a FAR violation (§121.153(a)(2)). Finally, 

Complainant showed that Respondent violated FAR §91.13(a). That section prohibits 

operation of an aircraft in a careless or reckless maimer so as to endanger the life or 

property of another. By improperly deferring a discrepancy involving the heating system 

in the left window, GoJet created an unacceptable hazard to crew and passenger safety by 

'" Respondent argues that Complainant failed to establish this violation because the intermittent nature of 

the onboard message meant that the equipment was not inoperable. See, e.g., Resp. Br., p. 8. This 

contention is rejected. A component which functions intermittently is inherently unreliable. An unreliable 

component that is required to be operable constitutes a discrepancy. Tr. 148; accord. General Aviation, 

Inc., FAA Order No. 98-18 (October 9,1998), pp. 12-13 (fuel gauge that worked intermittently was 

unreliable, therefore an unairworthy aircraft). 
12 

extending the risk that the pilot would be unable to properly see out the left window. A 

violation of §91.13(a) follows, moreover, as a residual violation once the fact of an 

unairworthy operation has been established. Ace Pilot Training, FAA Order No. 2005-12 

(August 17, 2005), supra p. 5 n. 3. 

2. Respondent's Affirmative Defense 

a. Background 

The Aviation Safety Action Program ("ASAP") is the agency program under 

which GoJet claims immunization from enforconent action. ASAP is the pilot's 

counterpart to the VDRP. An unidentified GoJet pilot submitted the ASAP report. 

GoJet's ASAP program is codified in a Memorandum of Understanding ("MOU") 

between the FAA, the pilots' union, and the carrier." The MOU establishes an Event 

Review Committee ("ERC"). The ERC consists of three individuals, who are 

representatives ofthe signatories. Its function is to review and analyze reports submitted 

by pilots under the program with a view to identifying safety concerns and proposing 

solutions (Court Exh. 1, p. 6, ^9). The MOU also allows the FAA to conduct an 

"independent investigation" of "an event disclosed in a report." (Exh. A-25). But it 

cautions that an ASAP report may not be used "as evidence for any pmpose" in an FAA 

enforcement action.'^ 

The MOU also references the VDRP. It states that violations disclosed through 

an ASAP may be handled imder the VDRP, so long as GoJet "voluntarily reports the 

possible noncompliance to the FAA and that the other elements of that policy are met." 

(Court Exh. 1, p. 4,1|4a; see also Exh. A-26, IJD (FAA Order 8900.1); Tr. 169). 

PMI Cooper first learned that GoJet had apparently incorrectly deferred a 

discrepancy at a meeting ofthe ERC on June 12,2008 (Tr. 180-81; Exh. R-2). Mr. 

Cooper was not one ofthe three ERC members. He was invited to the meeting because a 

maintenance issue was involved. Cooper signed a confidentiality agreement pledging not 

to disclose any information learned at that meeting except in conjunction with the ASAP 

(Tr. 154,176-81; Exh. R-1). He testified that after this meeting he immediately started 

an independent investigation based on what he had learned there (Tr. 157-58,179-81, 

212). The investigation led to this action (Tr. 213). 

b. Decision 

I find and conclude that Respondent has carried its burden of proof in its 

affirmative defense. I will therefore dismiss the Complaint. 

" Court Exh. 1; Tr. 157-58, 173-74; Exh. A-25. The MOU's full title is "Aviation Safety Action Program 

(ASAP) for Pilots." Court Exh. 1. There now is a maint^iance ASAP, but it did not exist at the time ofthe 

incident. Tr. 205. 

'^ Exh. A-25, IJh. Exceptions to this ban are made for actions involving criminal activity, drugs, and actions 

appearing to involve "an intentional disregard for safety.^' The FAA agreed that none ofthe exceptions 

were applicable here. Tr. 174-75; see Court Exh. 1, p. 41f4. 
13 

The evidence showed that the agency, through PMI Cooper, obtained the 

information leading to this action at the ERC meeting. Enforcement resulted directly 

from Cooper's followup investigation. Pursuing information he had acquired at the 

meeting violated Mr. Cooper's written agreement to keep in confidence anything he 

found out there except in connection with the ASAP. 

The agency also violated its guidelines. The MOU, codifying GoJet's ASAP, 

specifically warrants that no information contained in an ASAP report may be used in an 

enforcement action (Court Exh. 1). The Program constitutes a promise by the FAA to 

refrain from enforcement action if the regulated entity confesses mistakes. It is an 

incentive to such entities to acknowledge missteps without fear of punishment. The 

ultimate aim, of course, is to identify and correct problems thereby disclosed to maintain 

and improve the safety of flight. The signatory in this matter, GoJet (through its pilot), 

kept its end ofthe bargain. It submitted an ASAP report which was accepted. The 

agency, however, did not honor its end. As such, it operated counter to its own 

guidelines. 

By engaging in the conduct described above, the agency operated in an arbitrary 

and capricious manner. These circumstances require that the Complaint be dismissed. 

See I.D. §II.B.2.b., pp. 6-7. 

The FAA's inspector Cooper nonetheless assured that he used nothing in the 

ASAP report in his investigation (Tr. 166). But the literal truth of this statement, 

assuming its veracity, is beside the point. What is germane is that the information 

contained in the report alerted the inspector to the possibility of FAR violations and their 

likely nature. The report was the seed of Cooper's subsequent inquiry - an investigation 

which led directly to this action. That is the nub ofthe agency's violative behavior. To 

endorse Complainant's argument, on the other hand, would be to permit information 

disclosed through the ASAP to be used in an enforcement action - nullifying the MOU's 

express guarantee. 

The agency also protests that the MOU specifically allows it to conduct an 

"independent investigation" of any event disclosed in an ASAP report. PMI Cooper's 

actions were only that, it asserts (Compl. Rebut., pp. 3-4). This argument is true as far as 

it goes. But the provision carmot mean that the agency is thereby permitted to effectively 

bypass the assurances ASAP gives regulated entities. And that is its result. I caimot 

conclude that the ASAP promise could lawfully be drained of all meaning. The agency 

may not take away with the one hand what it has given with the other. 

Mr. Cooper also testified that he began the enforcement action because he 

believed that GoJet's maintenance confroller knew about the discrepancy on the day of 

the incident but failed to defer it within 24 hours (Tr. 158,169). FAA policy under the 

VDRP, as has been seen, requires that the regulated entity submit an initial notification 

"ordinarily within 24 hours ofthe discovery ofthe apparent violation" {see I.D., p. 3). 

But Complainant's evidence fell short of proof While Cooper testified that he "sfrongly 

felt" that GoJet's maintenance confroller, Spencer, had been aware ofthe true nature of 
•,>i:'^fl[^--,-'.i;j^^;Wrtj6tJ^:ii 

14 

the problem (Tr. 158, 183, 186-87; Exh. R-2), he could articulate no basis for his feeling. 

That is not proof Moreover, to open an investigation under the VDRP guidelines based 

on information disclosed in an ASAP report, it must be reiterated, directly confradicts the 

MOU's guarantee that such information would not be used in enforcement. The 

disposition of this case requires circling back to the initial finding - that the agency's 

failure to keep its promise of confidentiality constituted arbifrary and capricious behavior 

requiring dismissal ofthe Complaint. 

All other arguments have been considered and are dismissed without discussion 

as without merit. 

For the reasons stated above, the Complaint in Docket CP10CE0004 is hereby 

dismissed." 

icnard C. Goodwin 

Administrative Law Judge 

Attachments - Service List 

" All other motions outstanding are dismissed. This decision may be appealed to the Administrator ofthe 

FAA. The notice of appeal must conform to sections 13.210,13.211(e) and 13.233 ofthe Rules of 

Practice, which require that a notice of appeal 1) be filed not later than 10 days (plus an additional five days 

if mailed) fi-om the service date of this decision, and 2) be p^ected with a written brief or memorandum 

not later than 50 days (plus an additional five, if mailed) ^n i the service date of this decision. The notice 

of appeal and brief or memorandum must either be a) mailed to the Federal Aviation Administration, 800 

Independence Avenue, S.W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur 

Wright Building—Suite 2W1000, or b) delivered personally or vi^ expedited courier service to the Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, 

Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC'430. A copy ofthe notice .of appeal and brief 

or memorandum also must be sent to agency counsel. Service upon the presiding judge is optional. 
FAA Docket Nos. CP10CE0003 & 

CP10CE0004 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Mr. Richard A. Leach 

GoJet Airlines, LLC, Respondent 

11495 Navaid Road, Suite 303 

St. Louis, MO 63044 

David J. A. Hayes III, Respondent's Counsel 

Vice-President & General Counsel 

Trans States Holdings, Inc. 

11495 Navaid Road 

Bridgeton, MO 63044 

TEL: 314-222-4316 

FAX: 314-222-4311 

David B. Kessler, Complainant's Counsel 

Office of Regional Counsel 

Central Region, ACE-7 

Federal Aviation Administration 

DOT Building 

rOl Locust, Room 506 

Kansas City, MO 64106-2641 

TEL: 816-329-3763 

FAX: 816-329-3771 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: 202-366-2139 Attomey-Advisor 

202-366-5121 Legal Assistant 

' Service was by U.S. Mail. For service in person or by expedited courier, use the.following address: 

Federal Aviation Administration, 600 Independence Avenue, S. W., Wilbur Wright Building—Suite 

2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.