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-'RTMENT OF 

Scott R. Morris 

FAA Office of Regiona] Counsel 

1601 Lind Ave., SW 

Renton, Washington 98057 

Telephone: 425/227-1417 

Facsimile: 425/227-1007 

_ UNITED STATES OF AMERICA 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C, 

In the Matter of 

SKYWEST AIRIJNES, INC. 

FAA DOCKET NO. CP09NM0012 

DMS NO, FAA-2009-0979 

FAA Case No. 2009NM060042 

COMPLAINANT'S BRIEF 

PROCEDURAL SUMMARY 

On February 3,2010, the Complainant issued an Amended Complaint to which Respondent 

filed a timely Amended Answer. In its Answer, Respondent admitted to Section I and Section 

II(1)-(12) and (15).^ Respondent denied the factual allegations in Section H (13), (14), and (16) 

as well as denied the violations alleged, and raised two afEinnative defenses. On September J, 

2010, tl« Administrative Law Judge (ALT) set the hearing in this matter for December 1 - 3, 2010. 

STATEMENT OF FACTS 

Sky West Airlines is the largest regional air carrier in the United States and is authorized 

to conduct its operations using N232SW, N567SW, N580SW, N41ISW, N430SW, N9] 3EV, 

^ Sea DMS Document FAA.2009-0979.0014, 

CoMPiAiNftUT's S*j«crio^-BRKP - CP09NN0012 

SKXMSST AlBtiNBs - 2 0 0 9NMOS004 2 

Page i o£ 17 

SCOTT R, MOJIRIS, FAA ATTOAV¥T 

TEL t 425.227.1417 ; PAX: 4rS,S27.100 7 
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and N668CA under Federal Aviation Administration Regulations Part 121 -^ Its operations 

specifications (OpSpccs) authorize it to perform de-icing operations consistent with its ground 

deicing program manual Standard Practice (SP) 2800, Part IX.^ The SP requires Sky West 

personnel to apply the deicing/antj.-icing fluid beginning at the left wing tip of an aircraft and 

continue around the entire aircraft until arriving at the startiuttg point. This identifies the left wing 

as the representative surface. The fluid application can begin at another location on the aircraft, 

but only Willi the prior approval of the pilot in command (PIC).'* When deicing/anti-icing fluid is 

applied to flight control surfaces, SkyWest persoimel are required to apply it from the leading to 

trailing edge and from the wing and elevator tips toward the fuselage. 

On February 17,2009, SkyWest was conducting operations at the Salt Lake City Airport, 

Utah. These operations included dejcing/anti-icing operations at Spots 3 and 21 on Uie airport 

prior to its aircraft departing,^ The weather condition that day consisted of light rain, and snow, 

and icing conditions were forecasted for and present at the airport and surrounding vicinity,' The 

weather conditions were such that frost, ice, or snow were reasonably expected to adhere to 

aircraft.* 

On February ] 7, 2009, Aviation Safety Inspectors Jason Grain and Ben Blauer conducted 

surveillance of SkyWest deicing/anti-icing operations at the Salt Lake City Airport, Utah. They 

drove to and entered the airport movement area using a government car that had affixed to it 

' See Amanded Complaint II.1,3-5 (DMS Document FAA-2009-0979-0010) and Answer (DMS Docuraenr FAA2009-09900014). 

' See Amended CompUiat n.2 and Answer. 

•* See Anj^ded Complaint 11.10 and Answer. See also Exhibit C-8. 

^ See Amerided Complaint II. 11 and Answer. 

* See Amended Complaint II.6-7 and Answer, and Exhibit C-1 A. 

"* See Amended Complaint It.S-9 and Answer, 

• Tr. at 20, lines 10 - 20 and Tr. at 234'lines 4-9 . 

CoMpiAiHAMT' s SANCTION HXIBF - CP05iIM0012 

STcmsST AisUstitBe - 2009NM060042 

pag e 2 o f 17 

SCOTT R . MOUIM, PAft. ArroRniEy 

TElii 425.227.1417 ; PAX: 425.a27.10ff 7 
02/07/2011 14:08 FAX 2024935142 

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large magnetic signs with the letters FAA in black on a white background.' They brought with 

them handheld radios that allowed them to listen in to the unique radio frequency transmissions 

that were occurring at the deicing/anti-icing locations, "* They also had v^th them, pieces of 

paper, an extract of Sky West's de»icing procedures, and an Element Performance Inspection 

document.' During their observations of these operations on Febrtiary 17, 2009, they observed 

SkyWest persoimel begin, the fluid application of aircraft at the wing root and spray towards the 

wing tip, They became concerned about how these operations were being conducted because that 

was not their recollection of how the SkyWest deicing manual set forth how aircraft were to be 

sprayed.'^ They observed seven aircraft being strayed root to tip in what they believed was 

contrary to SkyWest's approved procedures.'^ Tbey also observed SkyWest personnel 

commence fluid application on the right wing instead of the left wing.^'* They beard no 

communications benve«n the ground crew and the flight crew prior to, or after, in which approval 

for this was given by the aircraft pilot in command.'* Following each of the observed 

deicing/anti-icing applications the aircraft were dispatched and departed the Salt Lake City 

Airport, Utah."* 

After observing the deicing/anti-ictng operations of the aircraft, they approached a 

SkyWest truck.''^ In this truck was Tyler Lewis who they learned was the person in charge.'* 

* Tr. at 24, line 20 - Tr, at 25, line 8, 

^' Ti. ai 31, lines 11 - 12. See also Tr. at2I9, line 19 - Tr, at 220, line 3. 

*» Tr.at31, lines 8-11, 

" Tr. at 32, lines 9 - 12; Tr, at 34, line 12 - Tr. at 35, line 6; and especially Tr. at 53, line 7 - line 19. See also Tr. 

at 43 - 52; Tr. at 220. 

" Tr. at 55, lines 3 - 14; Tr. at 100. lines 15 - I«; Tr. at 101. lines 3 - 12; Tr. at 103, line 19 - Tr. rt 104. line, 5; 

Tr. at 112, line21 -Tr.a t 113,Iine3;andTr. at222-225. 

" Tr. ai 53, lines 11 - 13; Tr, at 222 - 225; and Exhibits C-i, C-5, C-6, 5e« cdso Exhibits C-2 and C-10. 

^^ Tr. at 58, lines 7 - 15 and Tr. at 235, line 16 - Tt. at 236. line 1. 

^* See Amended Complaint II, 15 and Answer, See also Exhibit C-11. 

" Tr, at 64, lines 17 - Tr. at 65, line IB. 

'•'^ Tr. at 65, line 19 -Tr. at 66, line 2, 

COMPIArmyfTT'S BANCTIOJI BRIEF - CP09NM0U1 2 

SKTWBST AlRIilbiES - 2009NM06004 2 

Pag e 3 o f 1 7 

SCOTT R. MORRIS, FAA AMQWB V 

TEL : 425.227.1417 ; PAX; 42S.227.100 7 
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They explained what they observed" and Mr. Lewis admitted to them that he knew his deicing 

employees were not following the correct procedtires and would immediately correct it.'^° Tlie 

inspectors then departed the airport, returned to their offices and reviewed SkyWest's entire 

deicing/anti-icing program."^' At this point they were convinced that tlierc was, in fact, a 

violation of Sky West procedures so hispecior Grain contacted SkyWest and informed it of his 

observations.^^ All told, of the eleven aircraft they observed during their surveillance on 

February 19, 2009, the de-icing procedures used on seven of those aircraft were not per 

SkyWest's approved program.^ 

ARGUMENT 

A. The record clearly estabhshes that SkvWest conducted de-icing operations contrary to it:s 

operations specifications, and thereafter dispatched seven aircraft in violation of its 

operation^ speciGcation, 

There are no substantive factual issues in dispute. The Respondent in its Answer to the 

Complaint admitted all of the factual allegations except those in paragraphs, 13,14, and 16. 

Both Inspector Grain and Blaucj testified in no uncertain terms that they observed SkyWest 

personnel commence fluid application on the right wing instead of the left wing of the aircraft 

that are subject to this Complaint, and that this was done without the approval of &e PIC as 

required by its manual. They also observed de-icing being conducted from root to wing-tip 

nthex than wing-tip to root as required by SkyWest's de-icing program. Both inspectors 

observed the de-icing and both listened to the unique radio .frequency where such communication 

" Tr. at 65, lines 14 - 18 end Tr. at 188, lines 1B - 22. 

" Tr. at 66, line 5 - Tr. at 67, line 11; Tr. at 409, line 10 - Tr. at 4)2, line 4, See also Exhibits C-2( page 2); C-3 

(last 3 sentences); C-10 (last paragraph); and C-13. See generally, Tr. at 226, lines 13-16 . 

'^ TT. at 67, lines 12 - 14; Tr. at 67, Kne 22 - Tr. at 69. line 8. See Tr. u 72, tine 1 - Tr. at 7^, line 4 and Exhibit 

C-8, page 4, (also ideinified as page 11 of 20 on the top right of the document), paras. B.6 and 13. 

" Tr. at 74, lines 6 - Tr, at 75, line 4; Tr. ar 80, Ibe s II - Tr. at 81, line 6; and Exhibtt C-9. 

" Tr.a t 75, lines 5-17 . 

COM&UiMMir'S SJUICTIOBJ BMBP - CP09NM0012 

SlWWEat Ai)u,iiU!5 - 20O9NW06O042 

Page 4 of 17 

SCOTT H- MOWIS, FAA A*T©»NEY 

TEL: 425.227,1417 ; FAX; <125 , 22 7 . 10O7 
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between the deice crew and pilots wotdd occur, and they did not observe anyone approach tlie 

flight crew on the tarmac. Tt is also established that SkyWest was required to comply vvith its 

OpSpec A023 in the conduct of its de-icing operations. Air carriers are not free to deviate from 

its operations specifications.^"' Finally, the factual allegation in dispute within paragraph 16 of 

the Complaint, is whether or not SkyWest complied with its approved deice/anti-icing program. 

Given the requirements of SP2800 and A023, it did not comply with its program for the seven 

aircraft identified in the Complaint. Therefore, between th« pleadings, the testimony of 

Inspectors Crain and Blauer, and the Complainant's Exhibits, all of the factual allegations are 

established by a clear preponderance of the evidence. The only real issue in this case is the 

appropriate sanction for these violations. 

B. The proposed sanction is stinported bv the facts and the Adroinistratai's sanction guidance 

set forth m FAA Order 2150.3B. 

While the maximum statutory civil penalty for violations of the provisions of 14 C.F.R. 

Parts 119 and 121 is $25,000 per occurrcnce^^ and per flight,^* the Adiainistrator has provided 

published policy guidance for Agency employees to follow when determining an appropriate 

civil penalty for a given case.^^ TTiis guidance is contained in FAA Order 2150.3B, in particular 

Chapter 7 and AppMidix B. The guidelines aid Complainant's penalty detemaination through a 

Sanction Guidance Matrix. The Matrix sets out specific penalty ranges for each type of violation 

and provides a range within which an appropriate sanction should be sought. Complainajit's 

" T>, at 69 line 2 - Tr. at 70, line 1; Tr. at 412, line 5 - Tr. at 413, line 8, See Exhibit C-7. 

'^ 49 U.S.C. 4630.1 (a)(1). See also FAA Order 2)50.3B, Chap 7, paia. 3 

« See 49 U.S.C- 4630Ka)(^)-

" If Respondent attempts lo claim that some other sanction is appropriate in tbis case, it is well-senlcd that the 

FAA's detetmlaation to institute a. civil penalty proceeding rather than employing some lesser form of sanction (such 

as a letter of correction) is a matter committed to the Agcucy's sound discretion. S*e In the matter ofOffShoreAir, 

FAA Order 2002-7,2002 WL 1042304 (ApriT 15,2002) and In the maiter of Wyaa, FAA Order 92-73,1992 WL 

733220 (Dec. 21,1992). See alto In the matter of Bosio»-Maine Airways, FAA No. CP08SO0002, 200S WL 

3485802 (August 8,2O08)(tnitiBj decision). 

OOHfLkDU^IT'S SJOaCTICH BRIt r - CPO9MM0012 

SKVWEST AlULireS - 20D9NM06QO-42 

Page s cf 17 

SOOTT R . MOJUUS, PAX A,TT01wr!f 

TEL i 425.227.1*17 ; FAX: 425.227.1D0 7 
02/07/2011 14:08 FAX 2024835142 FAA •^ DMS 

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sanction determination nevertheless does not merely reflect a fixed mathematical computation 

but considers a multitude of factors set for in Chapter 7, paragraph 4. Using these factors, the 

Complainant adjusts the sanction either upward or downward from middle of tlie recommended 

sanction range.^* The Complainant has identified thirteen (.13) factors to consider when 

determining the appropriate sanction for the violations associated with this casc.^' In Folsom 's 

Air Service, Inc., FAA Order No 2008-11 (November 6,2008), the Administrator held that FAA 

Order reflects the Administrator's general views about the civil penalty ranges that are 

appropriate for different types of violations. In short, a civil penalty must reflect the totality of 

the circumstances surrounding the violations. Folsom's, supra. 

Unlike the National Transportation Safety Board (NTSB) AL.Ts,^' Department of 

Transportation (DOT) ALJs are not statutorily bound by the Adminisfrator's guidarce. However, 

the ALJ is bourid to follow Agency guidance and the Adminisfrator has asserted the power to 

impose the ^ency's sanction policy on. appeal if an AL.T assesses a civil penalty that is not 

consistent with the policy. See In the maiter ofWarbelow 's Air Ventures^ Inc., FAA Order No. 

" The guidanca provides that the middle of each recommetidcd sanction rang* is where one begins for a single 

violation without aggravating or raitigaiing factors. FAA Order 2150.3 B, app. B, para, 3(c) [p. B-2] 

*' Those fectors are: 

a. Nature of the violation; 

b. Whedierthc violation was inadveneni and not deliberate; 

c. The certificate holder's level of experience; 

d. The attitude of the vjolatar; 

e. The degree of ha»rd; 

f Whether there was action taken by the employer or other authority for against the employee that 

connnincd the violaiion(s); 

g. Use of the certificate; 

h. Violation history; 

i. Decisional law; 

j . Ability to absorti the sanction; 

k. Consistency of Sanction; 

L Whether (he violation v^as Reported Voluntarily; and, 

m. Corrective Action. 

COMPIAINANT'S awiCT-OK BMB F - CP09NM001 2 

SxyWssT AiRLines - 2009NM060042 

page 6 of 17 

SCOTT R. M0i«lI3> FAAATTOBME V 

TEI,: 425.227.1417J FAX: 423.527,1007 
02/07/2011 14:09 FAX 

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2000-3 (February 3,2000), at 20; In the matter of Northwest Airlines, FAA Order No. 1990-37 

(November 7, 1990), at g-10. 

From the outset, the Complainant acknowledges that it has the burden to justify the 

amount of civil penalty it seeks. In the Matter of Luxemburg, FAA Order ] 994-18 (Jvme 22, 

1994), However, it is also well established "[a]n administrative agency is entitled to substantial 

deference in assessing the civil penalty appropriate for a violation of its regulations. The 

Agency's choice of a sanction is not to be overturned unless it is unwarranted in law or without 

justification in fact" NL Industries. Inc. v. Dept. of Transportation, 901 F.2d 141, 144 (D.C. 

Cir. 1990).''" In this case^ the sanction is not only appropriate but fully supported under the 

Administiator's sanction guidance.^^ 

In this case we are not talking about a person that is on her first airplane flight who commits 

a relatively minor violation. Air carriers are held to a lugh duty of care. Indeed, they are obligated 

to perform their services with "the highest possible standard of care," See, e.g., Folsom's, supra. 

p. 16. This degree of care devolves from the carriers' responsibility to assure, to the maximum 

extent possible, the safety and well-being of its passengers, crew, and others involved in 

transportation by air. The Administrator has made it clear that "[c]ertifica,te holders with a 

greater level of experience may be held to a higher standard."" 

^^ 49 U.S.C. §44709(d)(3) requires the Board lo give deference to the Administrator's written Agency policy, 

absent a fmding that it is azbitr^ry, capricious, or othenvise not according to law. 

'^ "[TJherc is precedent indicating that unless there are factors justifying the reduction of an odjerwise reasonable 

civil penalty. Complainant's use of the sanction guidance to determine the appropriate civil penalty should not be 

disturbed." 7H the Mtmer of Blue Ridge Airlires, FAA Order NO. 99-15, 1999 WL 1279832 (Dec. 22, 1999) citing 

7>ans World Airlines, Int., FAA Order No. 98-] I, al21 (.Tune 16, 1988). AccordFAA v. Don Bes-iette Aviation, 

2006 WL 1624325, at 5, 7 (iaitia] decision of Judge Goodwin), 

^* "When sanction js ao issue, the law judge Is expected lo give a reasoned explanation of the amount of the civil 

penal^ selected, wljedier or not the penalty is reduced. The Administrative Procedure Act requires articulation of 

the law judge's sanction decision."/n theMarter of Toyota Motor Satex, /nc.TAA Order No. 94-24, 1994 WL 

89966 (Sept 30, ]994)(ciiing lo 5 U.S.C. §557(c)), 

" FAA Order 2150.3B, chap. 4, para, 4(c)(1) fp. 7-51 

COKFIAIKANT'S SAHCTIOW SME P - Cf D9NM0012 

3icfHKjT AIRLINES - 2009MMOfi0042 

Pag e 7 o f 17 

SCOTT ft. MORRIS, FAA ATToiwEr 

TEi : 425.227,1417 ; ffAJC: 425.227.100 7 

BtHB H 
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Another consideration in determining the penalty amount is Respondent's size. The 

Agency's policy is to place a relatively equivalent deterrent effect on each air carrier. As such, 

"fwjben the violator is a large company rather than a small company," the Administrator has 

said, "the penalty may need to be correspondingly larger to ajchieve the %aiQ?. deterrent efifecl," 

Toyota Motor Bales, USA, Inc., FAA Order No. 94-28 (September 30, 1994), p. 11. Here the 

violator is "the world's largest independently-owned regional airline, providing service througjiout 

North America.""'^ As an air carrier whose annual operating revenues are in excess of $100 million 

and who employs more than 1,500 cmployecs,^^ SkyWest is categorized under the Administrator's 

sanction guidance as a Group I air carrier."'^ As a large carrier by any measure, SkyWest must be 

subject to a fiue with a deterrent factor appropriate to its size. The penalty shoiJd represent 

something greater in effect than simply a cost of doing business. SkyWest has already 

acknowledged that it has the financial ability to pay the proposed civil penaJty.^^ So there is iio 

issue about the ability to absorb the sanction.-'* 

The Administrator also requires consideration of the company's prior violation history. 

As he has time and again opined that the absence of a violation history is not grounds for 

mitigation.'' See Toyota Motor Sales, FAA Order No. 94-28 (Sept 30, 1994). On the other hand, 

a prior violation is considered a matter in aggravation, especially if it involves similar violations, 

^° SkyWest Airlines Fact sheet at httD;//ww\».»ikvwe5t.coni/niedia/glcvWest-Airiine?tFact-Shcict.php (retrieved June 

9,2010). See also Tt. at 85, line 13 - Tr. at 86, line 1, and Respondent's answer to Complainant's Initial Discovery 

Request to Request for Admissions 1 - 3 loaaud tn DMS Document FAA-20O9-0979-00O5 (page 6). 

"^^ See Aosvvers to Request for Admissions 1 and 2 in Respondent's Response to Complainant's Initial Discover^' 

Request. According to ScyWcst's own stateoicnta on its public website, it employees 8,802 fiall-iime employees 

operates 294 aircraft, and had an operating revenue of S604.d million in the quarter ending December 31, 2009 

alone. See y\vw.skvwest.cQm (retrieved June 9,2010). 

" FAA Order 2 J50.3B, app. B, para, 3(c)(1) [p. B-3], 

*'' See Answer to Request for Adtnissiom 3 in Respondent's Response to Complainant's Initial Discovery .Re<5UC3t 

located in DMS Document FAA-2009-0979-0005 (page 6). 

" Ttis is one of Administrator's sanction criteria. See fa 29, supra, 

CDKE'IAItUOn'S SAVCilOM BKIEf -' C{>OSI^0012 

SnrUssT PLtK.iitzs - 20O9NM0eOO42 

P«j e 9 o f 17 

SCOTT R, MOWlfi, FAA ATTORUEY 

TEL: 425.227.1417 / PAX: 425.227,100 7 
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and "can justify imposing a sanction at the higher end of the normal range or a sanction beyond 

the normal range.'''^° In this case, SkyWest has a prior violation history, Specifically, it has 

received Orders Assessing Civil Penalties on two occasions in the two years immediately 

preceding this violation involving improper de-icing operations -- one occurring just a week prior 

to the events that are the subject of this Complaint.'*^ 

This case involves SkyWest dispatching or otherwise releasing seven of its aircraft when 

the weather conditions warranted it to properly use its approved deice/anti-ice program.. 

SkyWesit failed to properly comply with its approved dcice/anti-ice program and it thereafter ha.d 

these seven aircraft depart the Salt Lake City, Utah airport without being properly deiced. For 

sanction purposes, the Administrator believes that SkyWest committed fourteen separate 

violations: seven for the violating its OpSpecs for its failure to comply with its approved deicing 

procedures and seven for actually aJJowJjng the aircraft to depart and operate following the 

improper application of the deicing fluid. The Administrator has established the following 

sanction ranges for Group I carriers who commit violations.*^ 

Maximum $18,750-$25,000 

Moderate $10,000-$18,749 

Minimum $2,000-59,999 

The Administrator has further identified what would be an appropriate sanction for each. 

type of violation. For a violation of the SkyWest's approved deicing program the Administrator 

guidance indicates a moderate to maximum civil penalty for each violation.'*^ Therefore the 

" "A violaiion-free histoiy is the expected nomv net die exception and, therefore, is not a mitigating factor." FAA 

Onler2]50.3B, chap. 7, para. 7-4h(l) (p. 7-7] 

*" Id. 

** See Respondent's Answer to Request for Admission 4 in Respondent's Response to Complainant's Initial 

Discovery Request located in DMS Document FAA-2009-0979-0005 (page 6). 

" FAA Order 21S0.3B, app. B, para. 3(cXl) [p- B-3]. 

Exhibit 12 (FAA Order 2150.3B, ipp. B, Fig. B-l-i<(l) [p. B-I4]). 

cei><iPi,».rKw»T's SANCTIOU BRIS? - CP09iJMOOi2 

SKYWESt AlKLIVSS - 20e9NH06O042 

Pag e 9 o f 17 

SCOTT R , MOWlie , FAA AtTOWIBy 

TEL: 425.227,1417 ; FAX: 425.227.100 7 
02/07/2011 14:08 FAX 2024935142 

aifjibrZiJll B9:ll 4252271807 

FAA + DMS 

ANM7 

[gion/018 

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sanction range for these seven violations is S 10,000 - $25,000 for each of those violations. 

Beginning at the mid-range, prior to any fiaUier evaluation, the initial sanction would be $17,500 

per violation. Next, there was the actvial operation of the aircrafL The Agency concedes that the 

safety risk given the weather on that dav was low and no real safety issue existed. Therefore, for 

purposes of sanction, the Agency believes that this violation constitutes technical noncompliance of SkyWest's operations specifications. The Administrator's guidance indicates a 

.minimum civil penalty for these operation specification violations. The sanction range for these 

seven violations is $2,000 - $9,999 for each violation.*^ Again beginning at the mid-range prior 

to any adjustment for the factors the Administirator indicates that one should consider results in a 

$6,000 per violation sanction.'*^ Therefore, following a rout mathematical formulation, the 

sanction range would begin at $164,500 [(IX $17,500) + (7 x $6,000)]. The sanction requested 

in thip case is $84,000 which demonstrates at the outset that the Agency did not follow a strict 

mathennatical formula lo determine the proposed penalty*^ hut did, in fact, consider the totality of 

the circumstances. The Agency did consider that the safety risk at the time of these deicing 

operations was low.*' The Agency also did consider the fact that SkyWest was assessed a 

$20,000 penalty for violations that occurred a week prior where the company was not notified of 

those violati'ons until after the incidents that are the subject of this Amended Complaint.' 

However, the Agency also balanced this against SkyWest's obligation to monitor is own 

. 4S 

*• See also Tr. at 86 - 88 

" I d 

tt The Administrator frowns on a strict formula approach. Sec Intersiaie Chemical Company, Inc., FAA Order 

2002-29 (Dec. 6,2002), p. 15. Complainant also r«cogni2es that little weight should be given to merely addressing 

the maxtcnum potential penalty possible; $450,000. See FAA v, Trans States Airlines, FAA Docket No, 

CP08CEO0O3,2009\VL I04I8B5 (April 16,3009)(Initia] Decision of AU Goodwin), atfe 6. This figure is 

provided as illustrative evidence that the Agency exercised ics best judgment in determining where ihe sanction 

should be within the range provided by the A dministrator, 

*"" Tr.at92,lines 3-11 . 

COWlftiwuft'S SHWCIICN SHB F - CP09NMd012 

SXTWBST AlRUMBS - 2009NW060042 

Pag e l o o f 17 

SCOTT R , MORRIS , FAA ATrosNcr 

TEL', 425.227.1417; FAX: 425.227.1007 
02/07/2011 14:08 FAX 2024935142 

oi/zb/zol l a9;ll 4252271807 

FAA * DMS 

ANM7 

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Operations; the fact that this same conduct was observed a week prior; that SkyWest cannot use 

the FAA as its quality control; that a different safety result could have occurred if the weather 

was different; and SkyWest's violation histoiy. The Agency also considered that these were Part 

121 operations carrying passengers. It should be noted that tiie civil penalty case concerning the 

February 10,2009 violations was a downward departure from the Administrator's sanction 

guidance thus demonstrating the Agency considered all of these same factors in the earliet case.^^ 

The sanction requested here essentially becomes $12,000 for each of the seven aircraft 

referenced in the Amended Complaint. Even if the ALJ was to consider the three regulation 

violations as all being multiplicious for sanction purposes, the $12,000 per aircraft/flight is at the 

lower end of the sanction guidance and there is no evidence that warrants a downward deviation 

from the Administrator's sanction guidance. It is the Agency's position is, that any amount lower 

than the proposed, would not provide sufficient deterrent to these types of violations. The 

Agency is in the best position to determine what sanction shotild be imposed for a given violation 

and absent a fmding that the Administrator is acting arbitrary or capricious, the ALJ should give 

deference to the sanction proposed, especially when the sanction proposed is at the lower end of 

the sanction guidance. 

** See It. at 93, line 19 - Tr. at 94, Hre 20. 

*' SkyWest was assessed a $20,000 CP for identical regulatory violations involving six aircraft in flie case involving 

Inspector Peterson observations on February 10, 2009. See Respondent's Answer to Request for Admission No. 4 in 

Respondeoi's Response to Compiainant's Initial Discovery Request heated in DMS Docnmeni FAA-2009-0979-

0005 (page 6). Inspector Peterson eJcperieoced a significant family tragedy that distracted her from focusing on her 

FAA duties from February 10 throu^tbc rest of the month. See Tr. at 393 - 394. It Is undisputed that the FAA did 

not notify SkyWtsi of the February 10,2009 violations until after the February 17, 2009 violations. However, it is 

reasonable to assume that the Agency's Order pertaining to the February 10, 2009 violations considered this fector 

for soch a doiwiward deviation of fte Adixunistrator's aanctJon guidance. 

COWUUHMTr'S SAMCTIOM BRIBJ' - CP09HMQ012 

SEVMSST AlRLIMea - 200*J»MOGOD4 2 

Pag a 11 oC 17 

Scoxr R. MoRHis, FAA ATTORNEY 

TEL: 425,227.1417. FAX: 425.227.1007 
02/07/2011 14:10 FAX 2024935142 

ox/^o/^oi i Kiy:i l 4252271007 

FAA •> DMS 

ANM7 

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C. Respondents defenses do not warrant a reduction in sanction. 

The Respondent raised as a defetise, but presented no evidence to support, that the proposed 

penalty violates FAA policy, is excessive and an abuse of discretion. This assertion lacks merit. 

In the main, the Respondent has the burden of proof for any affirmative defense. 

The Administrator is ultimately responsible for regulating safety in air commerce. 

Clongress gave the Administrator the power to prescribe regulations.^'^ In fiarthcrancc of tliis 

obligation to the public, the Administrator has the authority to impose sanctions for violating 

Agency Regulations.^' The Administrator has made available to the public how sanctions will 

be determined and what factors it will consider. However, as to the weight associated with each 

factor "the Complainant maintains relative prosecutorial discretion in determining.the case's 

final aggregate weight in proposing the level of civil penalty." In the Matter of William A. Luker. 

Jr., FAA Docket No, CP09SW0008, 2010 ^ T 1989430 (May 13, 2010) (Order of Chief Judge 

Yoder Granting Complainant's Motion for Summary Judgment) 

It is likewise anticipated that Respondent will argtie that the sanction imposed should be 

reduced or eliminated because of the alleged "doctrine of waiver, acquiescence and unclean 

hands.' This is essentially a quasi-eatoppcl claim against a governmental entity as to the 

sanction. 

=' 49 U.S.C. §40113. 

^' 49 U.S.C. ^301 . See also 14 C.F.R. §13.16 

" At the hearing itself, Respondent** counsel raised the Accardi Doctrine defense. See Accardi v. Shauncssey, 347 

U.S. 260 (1954). However, this was not raised as a defense in the pleadings and therefore this defense should be 

considered waived. 

Assuming arguendo diat this defense is not waived, this defense 15 not apphcable in this case because there 

is no statutory or regulatory right at issue. Purfber. the Accardi Doctrine does not apply to here because FAA Order 

2150-3B provides no procedura] protections or substantive rights to the Respondent. The Order is a guide to 

inspectors. See Barrie v, FAA. 16 Fed. Appx. 930. 2001 WL9on47 (C.A. 10* Cir-(N,M.)). At best, the Accardi 

Doctrin* mi^ t apply if Agency personnel did not follow an Agency reguktion ihat bestowed a substantive right. 

For escaraple, 14 C.F.R. 13.16 provides Respondent the right to have an opportunity to hold an iafonnal conference. 

There is no regulatory issue involved here. Respondent seems to claim that the Inspector's did not foUow FAA 

COMPiAaaUT't BAMCTIOH SUtcr - CP09NM0012 

SKTWSST AIULINM - 200 9M106004X 

Pag « 12 o f 17 

seotT R - MORRIS , FAA ATTOWJEIT 

TEL: 425.337.1417; FAX: 425.227.1007 
02/07/2011 14:10 FAX 2024835142 

OL, ,40/ zoii ayt 11 4252271007 

FAA + DMS 

ANM7 

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The policies the FAA are charged with upholding and advancing — chiefly the 

maintenance of safety and security in afr transportation make a successful estoppel claim against 

it especially difficult "The promulgation, preservation, and enforcement of standards of safety 

in the air are among the most critical fiinctions entrusted to any regulatory agency, Tl:e field of 

aviation safety carries special responsibilities because so much is at stake," In (he Matter of 

Delaware Skyways, LLC. FAA Order 2005-5, 1995 WL 916051 (March 10, 2006), at 6 

(statement from Judge Kolko's (Drder Granting the Motion for Decision), The NTSB, in fact has 

held unequivocally that estoppel will never lie where the public interest in flight safety is 

impUcated FAA v. Ronald O. Fisher, EA-2986, 6 NTSB 1292,1294 (1989), t^dsub mm. 

Fisher v. D. O. T., 911 F.2d 27 (9* Cir, 1990). While the AU, or the Administrator for that 

matter, is not bound by NTSB case law, he may follow it if it is persuasive. Folsom's, supra, at 

4; In the Matter ofWestAir Commuter Airlines, Inc., FAA Order No. 1993-18 (June 10, 1993), 

at 6; 7n the Matter of Richardson & Shimp, FAA Order No. 1992-49 at 9 n. 13 (July 22, 1992). 

To prevail against the Government under this quasi-estoppel claim, the Respondent 

would have to show "affirmative misconduct" by governmental officials. Delaware Skyways, 

supra, at 3. See also FAA v. Sun Quest Executive Air Charter, LLC, 2010 WL 31S480 (January 

26, 2010) (Initial Decision of Judge Goodwin), at fii 7, There is not a slired of evidence in this 

case that Respondent could remotely meet this burden. Further, in Hecfder v. Community Health 

Services of Crawford County, 467 U.S. 51 (1954), the Supreme Court explained the elements of 

estoppel as follows; 

Order 2150.3B guidance because they did not notify * e Respondeni of potential violations .within the timefranie that 

itftH^ffht that it shpuld be notified. In this case. Respondent was notified of its violations within a matter of hours. 

To claim diat this was not timely is a specious argument. 

COMSUklKJOlT's SMICIIOH BMCr - CP09HM0012 

StcyWEST AtRiima - 2009IIM060042 

Pag e 1 3 o f 17 

SCOTT R . Mourns, FAR ATTOSKEV 

TEL: *25.227,1417 ; PAXs 435,227.100 7 
02/07/2011 14:10 FAX 2024935142 

oA/^o'zuii kjy:!! 4252271007 

FAA •» DMS 

ANM7 

31015/018 

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[T]ho party claiming the estoppel must have relied on its adversary's conduct "in 

such a manner as to change his position for tlie worse," and that reliance must 

have been reasonable m that the party claiming the estoppel did not know nor 

should it have known that its adversary's conduct was misleading. 

SkyWest fails on both of these counts. SkyWest cannot rely upon any alleged 

misrepresentation by Inspector Peterson as a basis for its purported defense because she never 

made a representation that caused them to change its position for tiie worse. In the light most 

favorable to SkyWest, haspcctor Peterson's failure to act because of her uncertainty about 

wheflier or not an actual violation may have catised SkyWest to merely continue to operate in 

violation of its deicing program. That is a far cry from actually causing a violation to occur. The 

inaction by Inspector Peterson, because of her uncertainty, caimot be imputed as a representation 

to SkyWest that there was no violation. To hold as such, would be to impute that FAA 

Inspectors are all-kno'wng about every aspect of every air carriers operations - an untenable 

position. More importantly, SkyWest had every reason and opportunity to observe the conduct 

of its own employees in the conduct of its operations. 

The actions of its employees were literally in a public open area, on the ramp at a large 

public airport. It would be more than a stretch for SkyWest to claim thai the actions of Inspector 

Peterson were willful misconduct. At best, it would have been a better praictice for her to have 

notified SkyWest of the potential violations she observed on the February 10*, but given the 

significant family tragedy she learned of, immediately after these observations, one can 

tmderstand and appreciate the re-ordering of her priorities.^' 

" Finally, even assuming arguendo., SlQ'West could somehow convince that AIJ that Inspector Peterson's actions, 

or any otfier F.AA employee's acdons, rose to the level of neglect that still does not reach the burden of willftjj 

conduct that must be met for an estoppel argunientto prevail, SeeSimen v. Caltfano, 593 F,2d 121, 123 (9* Cir. 

1979). 

COKPliMwujirr' S BMICTJOH 3B.JEF - CP09NM0012 

SKifWseT AIRLINES - 2O09NM06OO42 

{•age 14 o f 17 

ScOtT R. T>10KBI6, FAA AlTORNEV 

TEL: 425.227.1417 : FAX- 425.237.100 7 
02/07/2011 14:10 FAX 2024935142 FAA •> DMS 

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CONCLUSION 

Respondent has already conceded that it has the financial ability to pay the proposed civil 

penalty. The Complainant has provided an explanation as to how it arrived at the proposed 

penalty consistent with the Administrator's sanction guidance. Given Respondent's prior 

violation history, the number of aircraft involved, the size of the company, and the range in 

which the possible sanction should fall within the Adminislrator's guidance, the S84,0D0 

proposed is emincntiy reasonable. What Respondent wishes to do is claim that the Agency 

fiadled to notify it that jt was in non-compliance, essentially shifting its quality control 

responsibilities from itself to the Complaint; the Admiiusfrator cannot allow this. 

As the ultimate guardians of air transportation safety, the Complainant must ensure that 

an air oairier perform its duties with the highest degree of care, and it cannot absolve itself of this 

duty by assuming that an Inspector, who happens to be in the area catches a deficiency in its 

program. What happened here does not warrant any fiirihet mitigation other than already 

considered by the Agency in its analysis. To allow Respondent a second bite at the sanction 

when these factors have already been considered would eliminate the need for the Agency to do a 

totality of the circumstance analysis and allow it to merely rely upon tlie rout mathematical 

formulation the Administrator seeks to avoid. Having demonstrated a logicalrationale for the 

In fact, even if Inspector Peterson had made an atfirmatlve statement approving the deicing operations, that 

would not be a bar to an action in this case. The Ninth Circuit has made the foDowjng observation: 

[T]he Supreme Court, in 5<J'm'tfrter V. Hansen, 450 US. 785 (1981), a case involving eligibility 

for social security benefits, held that the sutranent by an adminjstraiive oBlcial on a ceitain matter 

does not estop the administrative agency from later asserting a position contrary to thit statement. 

The Schweiksr Court noted that if tb.e administrative ofRccr's statement was held to estop the 

government from asserting a different position, then the government is put at risk that evei-y error 

by a govemtnoTt agent will deprive the govemmeBt of the benefits of its more thorough 

admlnistraiive procedures. 

Fttlierv. V.r5.5,. 917 F.2d 17,1990 WL 161005 (9** CiT- 1990)(unpublished opiftioB), at 2, 

CoKFWaWiNT'S SRHCTIQH BME P - CP09NK10012 

SJWWesT AlRfclNEC - 20OgNMOSOO42 

Page 16 of 17 

SCOTT R . Motmtfl, FAA ATTOBSEY 

TEL: 425.227.141 7 J FAX: «25.327,100 7 
02/07/2011 14:10 FAX 2024935142 

H.iO.^.ii'ioac 

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requested sanction, the ALJ should give deference to that sanction and affirmed the 

Complainant's request for the imposition for an $84,000 penalty, 

RESPECTFULLY SUBMrTTED ihis 26* day of January 2011. 

Sott R-Morris 

FAA Attorney 

COMMJLr>w«T' s SANCTIOW BJIISP - CP09NMOO12 

SJffWtflT ASM.IU3S - 2009HM06D042 

Paj e l « o f 17 

SCOTT R . MOJW:^S, PAA ArreuwEif 

TEI,: 425,227,1417 ; FAX; 425.227.100 7 
02/07/2011 14:10 FAX 2024835142 

01/26/20H 09:11 4252271007 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complainant's Brief, has been served via Facsimile and 

Certified Mail this date, to the following: 

The Honorable Richard C. Goodwin 

Office of hearings, M-20 

1200 New Jerse)-- Avenue, S.E, 

East Building Ground Floor, Rm E12-320 

Washington. D.C. 20590 

FAX: 202.366-7536 

Attn: Hearing Docket Clerk, AGC-43 0 

Federal Aviation Administration 

800 Independence Ave SW 

Wilbur Wright Bldg. - Suite 2W1000 

Washington, D.C, 20591 

FAX; 202. 493.5142 

Todd C. Emerson 

SkyWest Airlines 

444 S. River Road 

St George, Utah 84790 

FAX: 435.634.3505 

Dated this 26* day of January, 2011. 

^uUl ^CSM>. 

>ANA STEPHENSON 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave, SW 

Renton, WA 98057 

TEL: 425.227.2164 

FAX: 425.227.1007 

COM?fc*iMANT' s SjvpcTiaM BRIEF ^ CP0 9NM0012 

SrtVzST AIRLINES - 2009MM060042 

Pag a 17 o f 17 

SoDTt R. HORRIfi, FAA ATTORNEY 

TSl : 425.227.1417 ; PAX: 42S.227.100 7