U.S. DEPARTMENT OF TRANSPORTATIO 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

J DECEIVED 

FEB 2 2 2011 

1 [EARING DOCKET 

IN THE MATTER OF 

GOJET AIRLINES LLC 

(Windshield Ice) 

1. 

2. 

FAA Docket No. CP10CE0004 

QMS No, FAA-2010-0190 

Judge Richard C. Goodwin i 

RESPONDENT GOJET AIRLINE'S PROPOSED 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

FINDINGS OF FACT 

o 

This Court has jurisdiction to hear this matter under 49 C.F.R. 82T;2. 

At all times hereinafter mentioned GoJet Airlines, LLC (GoJet), d/b/a 

United Express was the holder of Part 121 Air Carrier Certificate 

Number N6WA249L. 

At all times hereinafter mentioned GoJet was the operator of Civil 

Aircraft N115GJ, a Canadair CRJ-700 Regional Jet, Model CL-600-

2C10, registered as an aircraft available for use in Part 121 revenue 

operations. 

On or about May 31. 2008, GoJet operated N115GJ on Flight 5365 

from Lambert International Airport, St. Louis, MO (STL) to Denver 

International Airport, Denver, CO (DEN). 

During flight, N155GJ experienced an in-flight discrepancy for the 

pilot's left side window heat. The discrepancy was indicated on a 

Flight Log by the Captain as "L Window Heat Caution" intermittent 

during flight. 

Based upon that information. GoJet's Maintenance Controller, Ernie 

Spencer, authorized that the pilot's windshield anti-ice controller on 

aircraft N155GJ be deferred pursuant to Deferred Maintenance Item 

(DMI) 5909 in accordance with Minimum Equipment Listing ("MEL") 

item 30^1-01. 

Subsequent to Flight 5365. GoJet operated N155GJ on Flight 5393 

from DEN to Gerald Ford International Airport, Grand Rapids, Ml 

(GRR). 

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8. Upon reaching GRR the Captain of Flight 5393 noted in the Flight Log 

"pilot's left side window caution message intermittent during flight. This 

Captain was not the Captain on Flight 5365 from STL to DEN. 

9. On-demand maintenance at GRR also entered a discrepancy in the 

Flight Log that the "L window Head Caution Message Intermittent in 

Flight Ret DMI 5909. 

10. While on the ground in GRR, an operational check was perfonned on 

the side window anti-ice controller and it was determined to be fully 

operational. At that same time, maintenance performed an operational 

check of the left windshield anti-ice controller. 

11. 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 DMI 5909 was cleared. 

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

Safety Action Program ("ASAP") Report in accordance with AC 120-

66B. 

13. ASAP is an FAA program designed to encourage air carrier and repair 

station employees to voluntarily report safety information that may be 

critical to identifying potential precursors to accidents. 

14. Under ASAP, safety related issues are resolved via corrective action 

rather than through punishment or discipline. 

15. Participation in ASAP is voluntary. 

16. If a carrier desires to participate ASAP, the certificate holder, its 

participating employee group and the FAA enter into a Memorandum 

of Understanding ("MOU") setting forth the purpose for, and terms of its 

ASAP. 

17. GoJet and its pilot group entered into an MOU with the FAA to 

establish the GoJet Pilot ASAP. 

18- GoJet's MOU provides that if a pilot reports something into ASAP they 

will get immunity from prosecution from both the Company and the 

FAA under most circumstances. 

19. The FAA's published and publicly available guidance documents 

provide that although the i^AA may conduct an independent 

investigation, neither the written ASAP Report nor the contents of the 

written ASAP Report can be used to initiate or support company 

discipline or as evidence for any purpose in an FAA enforcement 

action. 

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20. After an ASAP Report is filed, a group called an Events Review 

Committee ("ERC"), which is comprised of a representative from each 

party to the ASAP MOU, then meets to review and analyze the 

report(s) submitted to ASAP and votes whether or not to accept the 

report into ASAP. 

21. If a report is accepted into ASAP it is closed with no action, unless the 

report demonstrates a lack of qualification or raises a question of lack 

of qualification in which case the appropriate corrective action is 

recommended by the ERC. 

22. Members of GoJet's ERC are comprised of a representative form the 

FAA, a representative from the pilot group and a representative from 

GoJet. 

23. Gary Cooper is a Principal Maintenance Inspector (PMI) for the FAA 

assigned to GoJet's certificate. 

24. As a PMI, Cooper is the principal regulating official of the maintenance 

function at GoJet. 

25. Cooper is not currently, and was not at the relevant time period, a 

member of the GoJet ERC. 

26. Cooper was invited to sit in on a June 12, 2008 meeting of the GoJet 

ERC by an FAA POI [Principal Operation Inspector] who was a 

member of the GoJet ASAP ERC because a maintenance related 

event was going to be discussed during a meeting of the ERC. 

27. Prior to the commencement of the meeting of the ERC, Cooper 

executed an "ERC Meeting - CONFIDENTIALITY REQUIREMENT" 

which stated that "all material contained in this [ASAP] report is 

confidential and privileged information and that any use of the ASAP 

report outside the confines of the ERC meeting requires unanimous 

consent of the ERC." 

28. Additionally, as a visitor, by executing the Confidentiality Agreement, 

Cooper agreed that he was bound by the rules contained in the MOU, 

and particularly understood that all proceedings are confidential and 

not to be discussed outside of the [ERC] meeting. 

29. 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. 

30. 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 

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asked to interview Ernie Spencer the maintenance controller involved 

in this incident. 

31. 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. 

32. After interviewing Spencer, Cooper went back to his office and initiated 

an Enforcement Investigation Report ("EIR") FAA Case 

#2008CE030141. 

33. A preponderance of the evidence establishes that the ASAP report and 

supporting documentation discussed and reviewed during ERC 

Meeting was the sole source of Cooper's knowledge of the alleged 

improper deferral which is the basis of this enforcement action. 

34. A preponderance of the evidence establishes that Cooper's action 

were in breach of the Confidentiality Agreement which he executed 

prior to the ERC Meeting. 

CONCLUSION OF LAW 

The Information Used bv the FAA to Initiate its Investigation 

Came From a Sole Source Report Which According to Published Guidance 

Documents Cannot Be Used To Initiate An Enforcement Action and Therefore 

Must Be Excluded from These Proceedings Because the FAA's Actions Are 

Arbitrary and Capricious 

35. Under ASAP, the FAA has invited parties subject to its jurisdiction to 

confess their violations in return for more favorable prosecutorial 

treatment, 

36. The FAA has published AC 120-66, cun-ently AC 120-66B, as its 

official program document to provide guidance to its participants. 

37. According to the FAA's published and publicly available guidance 

document governing ASAP, AC 120-66B, neither the written ASAP 

report nor the content of the written ASAP report nor the content 

thereof will be used to initiate or support company discipline or as 

evidence for any purpose in a FAA enforcement action... 

38. Additionally, according to the FAA's published and publicly available 

guidance document, AC 120-668, a report shall be considered a "Solesoo/t^ooia swo <• VVJ StLSeGtSO S XVd tL:SL LL02/S2/20 
39. 

40. 

41. 

42. 

Source Report" when "all evidence of the event available to the FAA 

outside is discovered by or othenvise predicated on the ASAP report." 

The ASAP report and documents reviewed by Cooper during the ERC 

Meeting constitute the sole source of Cooper's knowledge of the 

allegations giving rise to this enforcement action. 

Cooper's actions are in direct contradiction of the FAA's published 

guidance documents. 

There is no sound reason for the FAA to have refused or rescinded its 

bargain. 

Consequently, the FAA's actions in bringing this enforcement action 

predicated upon a sole-source report are arbitrary and capricious. 

Dated: Febnjary ^.201 A. 1 

David J.A. Hayes, 111 EsqC 

Vice President & General Counsel 

Trans States Holdings. Inc. 

11495 Navaid Rd., Ste. 340 

Bridgeton. MO 63044 

Phone: 314-222-4316 

Fax: 314-222-4311 

dhayes@transstates.net 

Attorney for Respondent 

GoJet Airiines LLC 

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CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Proposed Findings of Fact and 

Conclusions of Law was sent this J ^ 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. Kessler 

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., SE. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

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