U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION 

# RECEIVED FEDERAL AVIATION ADMINISTRATION ) ) ) ) ) ) ) ) ) ) ) 

## AUG 

## 2 1

## 2015 Complainant, DocketNo.

# 2012NM0650~j=ARING DOCKET FDMS No. FAA-2013-0292 v. SKYWEST AIRLINES Respondent.

COMPLAINANT'S APPEAL BRIEF Pursuantto section 13.233(d) ofthe Rules ofPractice, 14 C.F.R. § 13.233(d), Complainant files this briefin support ofits appeal ofthe Initial Decision issued byAdministrative LawJudge Richard C. Goodwin (ALJ) on May 29, 2015, in the above-captioned matter. I. STATEMENT OF THE CASE On June 19,2012, Complainant issued a FinalNotice ofProposed Civil Penalty alleging that Sky WestAirlines ("SkyWest" or "Respondent") took offcivil aircraftN426SW, a Bombardier CL-600- 2B19, when frost was present on the aircraft's upperwing surface, contraryto SkyWest's Operations Specifications (OpSpecs) and in violation of 14 C.F.R. §§ 119.5(g) & 

### (1), 121.629(b), and 91.13(a). Respondenttimely requested a hearing and the matter was heard before Administrative Law Judge (ALJ) Richard C. Goodwin onFebruary 10-11 & 19,2014. In the Initial Decision issued on May 29, 2015, ALJ Goodwin found that Complainanthad failed to establish a

### primafacie case supporting the above-listed violations and dismissed the Complaint with prejudice. Complainanttimely appealed this decision. II. STATEMENT OF THEFACTS On December 7, 2011, Aaron Perkins, an FAA Aviation Safety Inspector, arrived at Salt Lake City International Airport (SLC) at approximately 7:00A.M. to conduct a routine de-ice inspection. (Tr. 27). Upon arrival, he observed two Sky West CRJ aircraft undergo de-icing procedures (Tr. 28), and described the weather as a cold, clear morning, with light winds, conducive to frost formation. (Tr. 27 & 73). At Iapproximately 7:41 A.M., Inspector Perkins observed SkyWest aircraftN426SW at gate Echo I preparing for pushback and departure. (Tr. 29). To get a closer inspection ofthe aircraft, he parkedhis vehicle and approached N426SW. Id. Atthis point, he observed frost on the upper surface ofthe left wing. (Tr. 29). He thenreturned to his vehicle, moved it around to the west side ofthe airplane, and inspectedthe right wing ofthe aircraft, where he also observed frost. (Tr. 30). Inspector Perkins performed a tactile inspection

on one portion ofthe wing by running his hand over the area where frost was present. (Tr. 32). From this visual andtactile inspection, he estimated the frost on the wing was at least as thick, ifnotthicker, than a sheet ofpaper. (Tr. 33). Standingbehind the right wing, approximately three feet to the left ofthe wingtip (Tr. 55), Inspector Perkins photographed the frost onthe wing using his iPhone. (Tr. 30 & 77; Ex. A-3). He also took a photograph ofthe aircraft's tail number. (Tr. 55). He returned to his vehicle, expecting to follow N426SW to the de-ice pad so that he could observe the de-icing process. (Tr. 34). Instead, he watched N426SWpush back, taxi, and take offwithout performing any de-icing procedures. (Tr. 36-37). Meteorological records from the National Climactic Data Center showthat at 14:53 Zulu (7:53 A.M. local), which is approximately 15 minutes before N426SW took off, the temperature at SLC was minus 7 degrees Celsius (or approximately 19.4 degrees Fahrenheit). (Ex. A-5 at 2). 1 Thomas Bond, FAA's chiefscientist and technical advisor for flight environmental icing (Tr. 180), who was qualified as

an expert in aircraft icing (Tr. 194), testified thatthe weather conditions atthis time were conducive to frost formation. (Tr. 198). Specifically, the atmospheric conditions on December 7, 2011, including the dew point and temperature, and the potential for radiational cooling, lead him to conclude that frost could have indeed formed on the wing ofN426SW. (Tr. 198-199). He also concluded, based onInspector Perkins's testimony andthe photograph ofN426SW's wing (Ex. A-3), thatthe contamination witnessed and photographed by Inspector Perkins onDecember 7, 2011, was indeed frost. (Tr. 200). Yet, the First Officer ofN426SW's Flight 7770, Dennis Burr, completed a pre-flight inspection of the aircraft approximately 15-20 minutes prior to Inspector Perkins's inspection and did not see any frost.

1Respondent's expert, Kevin Perry, also testified that at 7:40A.M. it was actually colder, at atemperature ofnegative 8 degrees Celsius (17.6 degrees Fahrenheit). (Tr. 508). 2(Tr. 303, 319). Additionally, Daniel Anderson, a SkyWest Captain seated as apassenger in 6B ofFlight 7770, also testified that he looked out the window ofN426SW at approximately 7:40 and did not observe frost on the left wing. (Tr. 397-99). This discrepancy- between Inspector Perkins's inspection and the testimony ofRespondent's witnesses- is reconciled by Respondent's own expert in atmospheric sciences, Kevin Perry. Specifically, Dr. Perry explained that the likelytriggering event for the formation ofthe frost

was the addition ofcold fuel, which occurred afterthe First Officer's walk around. (Tr. 513-17). Indeed, Dr. Perry testified thatthe wing would quickly adopt the temperature ofthe cold fuel pumped into it. (Tr. 517). This event, taken in conjunction with the temperature decrease from negative 7 to negative 8 degrees Celsius overthe relevant time period, produced conditions conducive to frost formation on the wing ofN426SW 

### after the First Officer Burr completed his cold weather inspection, but prior to Inspector Perkins's discovery ofthe frost. (See Tr. 518). Sky West's OpSpecs authorized the use ofGround Deicing Program Manual SP 2800 (Ex. A-2; Answ.

**~** 4), which prohibits SkyWest from taking offan aircraft when frost is present on an upper wing surface. (Answ.

**~** 5). When frost is present on an aircraft, SkyWest's Manual requires the contamination to be removed bythe de-icing process prior to takeoff. (Ex. A-2; Tr. 65). Respondent admits that the weather conditions onthe ground prior to N426SW's departure were conducive to the formation offrost onthe aircraft's wings. (Resp'tResp. to Reg. for Admis. No. 1 ). Respondent also admits that N426SW did not receive an application ofde-icing fluid during the time that it was onthe ground at SLC priorto takeoff. (Resp'tResp. to Reg. for Admis. No.2; see Tr. 264-273). Moreover, none ofRespondent's witnesses testified that they viewed or examined the wing following Inspector Perkins's discovery and photographing ofthe frost. Respondent's defense, therefore, rested on its expert, Dr. Perry, who testified that, using an estimate ofthe amount offrost that couldhave formed on N426SW's wing (Tr. 525- 29), a combination offactors including ambient airtemperature, radiant energy, reflectivity ofthe aircraft's wing, and available sunlight would have sublimated the frost priorto the aircraft's takeoffat 8:08A.M. (Tr. 535-37). Essentially, Dr. Perry used an assumption ofthe amount offrost present atN426SW's 7:51 A.M. pushback from the 3gate (Tr. 525-528) and an approximation ofthe amount ofatmospheric energy available during its taxi time to opine that it was unlikely that the frost witnessed by Inspector Perkins was still present whenthe aircraft took off. (Tr. 541). In rebuttal to this opinion, Complainant's witness Roy Rasmussen, an expert in aviation weather with a Ph.D. in atmospheric science (Tr. 627-30, 634), testified that Dr. Perry's calculations, and thus his conclusions relating to the amount ofenergy available for and energyrequired for sublimation, were incorrect. (See Tr. 644-652). Specifically, Dr. Rasmussen testified that Dr. Perry calculated the amount ofenergy necessary to sublimate frost that was 0.05 millimeters thick, rather than the 0.1 millimeter (paper-thick) frost testified to and photographed by Inspector Perkins; thus, the actual amount ofenergy sufficientto sublimate the frost present on N426SW's wing would be double the amount calculatedby Dr. Perry. (Tr. 641-42). Additionally, Dr. Rasmussen opined thatthe heatbalance equation Dr. Perry used to calculate the amount ofenergy available to sublimate the frost was incorrect; Dr. Perry overestimated both the amount ofradiation available from the atmosphere (Tr. 650) and the amount of radiation emitted byN426SW's wing (Tr. 645-48), such that, even adjusting for zero solarradiation (i.e., night time conditions when frost should be prevalent), frost would not form (Tr. 644). In his initial decision, the ALJ summarized each witness' testimony and found "the testimony ofall witnesses to have been truthful and credible." (Initial Decision at 18). He also found the testimony ofeach expert witness to be informative and instructive, but determined that they "ultimately rebutted each other." IQ, Deciding in favor ofRespondent, the ALJ found that the FAAhad failed to carry its burden ofproof. !d. at 19. Specifically, the AU determined thatthe FAA failed to make aprima facie case that Respondent took offN426SW with frost present on its wing in violation of 14 C.F.R. §§ 119.5(g) & 

### (l), 121.629(b), and 91.13(a). Id. On these grounds, the ALJ dismissed FAA's Complaintwith prejudice. lll. STATEMENT OF THE ISSUE Whether ComplainantMet its Burden ofEstablishing by a Preponderance of the Evidence that SkyWest Took OffN426SWWhen Frost was Present on the Aircraft's Upper Wing Surface in Violation ofI 4 C.F.R. §§ 119.5(g) & (!), 121.629(b), and 91.13(a).

4IV. STANDARD OF REVIEW Underthe Rules ofPractice, the Administrator considers on appeal whetherthe ALJ's findings of fact are supportedby a preponderance ofreliable, probative, and substantial evidence. 14 C.F.R. § 13.233(b)(l). The Administrator also considers whether the ALI's conclusions oflaw are in accordance with applicable law, precedent, and public policy. 14 C.F.R. §13.233(b)(2). Finally, the Administrator considers whether the ALJ committed prejudicial errors duringthe hearing orproceedings. 14 C.F.R. § 13.233(b)(3). In civil penaltyproceedings, the burden ofproofis, in the first instance, onthe Complainant. See 14 C.F.R. § 13.224(a). The Administrator has held that Complainant may sustainthis burden ofproofthrough the use ofcircumstantial evidence. In the Matter ofCustom Aviation, Inc., FAA OrderNo. 2005-1,2005 WL 916047, at *6 (Mar. 8, 2005) (citing In the Matter ofCont'l Airlines, Inc., FAA OrderNo. 90-12 at 16 (April25, 1990)), Once Complainanthas established aprima facie case, the burden ofproduction shifts to Respondent who mustrebut Complainant's evidence. Inthe Matter ofEric W. Hereth, FAA OrderNo. 95-26, 1995 WL 853896, at *7 (Dec. 19, 1995)). TfRespondent fails to

overcome Complainant'sprima facie case, a preponderance ofthe evidence establishes a violation. See In the Matter ofAm. W. Airlines, FAA Order No. 96-3, 1996 WL 210094, at *13 (Feb. 13, 1996). On appeal, the Administrator may reweigh the evidence presented at hearing to determine whether each partyhas met its respective burden. Custom Aviation, Inc., FAA OrderNo. 2005-1, at *6-7. V. ARGUMENT A. Complainant Met its BurdenofEstablishing by a Preponderance ofthe Evidencethat Sky West Took OffN426SW When Frost was Present onthe Aircraft's Upper Wing Surface inViolation of 14 C.F.R. §§ 119.5(g) & (1), 121.629(b), and 91.13(a). Complainanthas the burden ofproving a violation ofthe FederalAviation Regulations (FARs) by a preponderance ofthe evidence. 14 C.F.R. §13.233(b). To meetthis burden, Complainantmustfirst present

aprima facie case, see Hereth, FAA OrderNo. 95-26, 1995 WL 853896, at *7, demonstrating that it is

more probable than not that a violation ofthe FARs occurred. In the Matter ofCont'l Airlines, Inc., FAA OrderNo.98-6, 1998 WL 231441, at *2 (Mar. 10, 1998). Ifa Respondent fails to rebut Complainant's prima facie case, Complainanthas met its burden ofproving a violation by a preponderance ofthe 5evidence. See Am. W. Airlines, FAA OrderNo. 96-3, 1996 WL 210094, at *13. Here, Complainant introduced evidence sufficientto support a reasonable inference, and thereby, aprima facie case, that N426SW took offwith frost present onthe upper surface ofthe aircraft's wings. For reasons discussed below, Respondent failed to rebut thisprima facie case, and, therefore, a preponderance ofthe reliable, probative, and substantial evidence supports a finding that SkyWest violated 14 C.F.R. §§ 119.5(g) & 

### (1), 121.629(b), and 91.13(a). I. ComplainantEstablished a Prima Facie Case that Respondent Took OffN426SWwith Frost Present onthe Upper Surface ofthe Aircraft's Wing. To meet its burden, Complainantmust demonstrate that it is more likely than notthat Respondent took offN426SW with frost present on its wing. Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 328-29 (2007) ("preponderance ofthe evidence" standard, stated otherwise, is "more likely than not"). Direct evidence establishing the frost's presence attakeoff, however, is not required. Cont'l Airlines, Inc., FAA Order No.98-6, 1998 WL 231441, at *3 (fmding the ALJ erred by requiring direct evidence to sustain burden ofproof). It is well-established that Complainant can use circumstantial evidence to sustain its burden ofproof. In the Matter ofFlorida Propeller & Accessories, Inc., FAA OrderNo. 97-32, 1997 WL 685987, at *3 (Oct. 7, 1997) ("Complainant may use circumstantial evidence to sustain its burden of proof."); In the Matter ofHampton Air Transp. Sys., Inc., FAA OrderNo. 97-11, 1997 WL 93231, at *I (Feb. 19, 1997). Applied here, Complainant has met its burden ofestablishing aprima facie case ifit presented evidence- circwnstantial or otherwise- sufficient to support a "reasonable inference" that frost

was present at takeoff. See Hereth, FAA OrderNo. 95-26, 1995 WL 853896, at *7. Complainant has metthis burden. Inspector Perkins, an Aviation Safety Inspector and former airline pilot (Tr. 23-24), testified that he observed frost onthe upper portion ofboth the left and right wings ofN426SWrightbefore the plane began to push backfrom the gate, which was at approximately 7:52 A.M. (Tr. 29-30; Ex. A-6). He performed a tactile inspection on the portion ofthe wing where frost was

6presentby runninghis hand over the area. (Tr. 31-32)." From this inspection, he estimated thatthe frost on N426SW's right wing was at least as thick, ifnot thicker, than a sheet ofpaper. (Tr. 33). After performing this inspection, he photographedthe frost and the aircraft's tail number. (Tr. 33, 55; Ex. A-3 & A-4). Thomas Bond, an expert in aircraft icing who has worked in the field since 1986, first atNASA and now at the FAA (Tr. 181-84), also reviewed Inspector Perkins'sphotograph and concluded that the photograph depicted frost onN426SW'swing. (Tr. 200). He further testified that the weather conditions on that morning were conducive to frost, given the dewpoint and temperature, and the fact thatradiational cooling could induce a lowertemperature on the wing. (Tr. 199). Respondent does not dispute this fact, (See Resp't Resp. to Req. for Adrnis. No. 1), and even Respondent's own expert concludedthat the weather and N426SW's wing conditions were "enoughto permitthe formation ofa tenuous layer offrost during the inspectionperiod." (Ex. R-4 at 5). Accordingly, the preponderance ofreliable, probative evidence demonstrates that frost existed on the upper surface ofN426SW's wing during Inspector Perkins's inspection. None ofRespondent's fact witnesses- First OfficerBurr, Captain Gibbs, or Captain Anderson- testified thatthey observed the aircraft's wings 

### cifter Inspector Perkins discovered frost. Indeed, Captain Gibbs did not leave the cockpit or perform a pre-flight ice inspection ofaircraft (Tr. 261, 282); CaptainAnderson, a passenger on flight 7770, viewed only a portion ofthe left wing from his seatin 6b around 7:40A.M. (Tr. 394-398); and First Officer Burrtestified that he performed a pre-flight inspection' ofthe wings about ten to 15 minutes afterthe aircraft arrived in SLC (Tr. 319), which was around 7:10 to 7:20 in the morning.4 (Tr. 322; Ex. A-6). First OfficerBurr left the cockpit once more to checkthe aircraft's fuel door (Tr. 332-33) around 7:40 to 7:45

2 Inspector Perkins testified that he is trained in the contaminant detection process, which involves both a visual observation and a tactile inspection to verifY the presence ofcontamination. (Tr. 31). InspectorPerkins testified that he did not perform a complete inspection, that is, he did not perform atactile inspection on the forward part ofthe wing, buthe did do a tactile inspection ofthe portion ofthe wing where he saw the frost. (Tr. 32).
3 First Officer Burr also testified that he did not perform atactile inspection on the entire portion ofthe leading edge ofthe wing or the entire length ofthe upper portion ofthe wing. (Tr. 330-3I).
4 ACARS data shows that Flight 7770 was initialized at 14:23 A.M. (7:23A.M. local), which would putthe aircraft's arrival into SLC slightly before that time period. First OfficerBurrtestified that the aircraft would have landed in SLC at around 7:10 in the morning. (Tr. 341). 7(Tr. 262), but his path would not have put him in a positionto observe the portion ofthe wing where frost

was present (see Tr. 283) and, furthermore, this check again occurred prior to Inspector Perkins's observance ofthe frost. Accordingly, this testimony only suggests that the frost was notpresentpriorto InspectorPerkins's inspection. As explained byDr. Perry, this is because the likely triggering event for the formation ofthe frost was the addition ofcold fuel (Tr. 513-17), which would have produced conditions conducive to frost formation on the wing ofN426SW 

### afterthe First Officer completed the cold weather inspection, but priorto Inspector Perkins's discovery ofthe frost. (See Tr. 518). Thus, Inspector Perkins, being the person who viewed the condition ofthe aircraft nearest to its takeoff, provided the most probative testimony ofthe existence offrost during the relevant time period. Inspector Perkins'sph0tograph (Ex. A-3) is corroborative ofhis testimony and is also probative evidence ofthe existence offrost on N426SW's right wing. The ALJ gave little evidentiaryweight to this photograph (Decision at 18) because Spencer Hyde, a graphic designer for Sky West, testified that the metadata from an electronic copy oflnspectorPerkins'sphotograph showed that it was modified at 8:31 P.M. on the date it was taken. (Tr. 453). Though this modification indicates the file was changed in

some manner, the witness could not speculate as to how. (Tr. 453). Indeed, he acknowledged thatthe modification time stamp could be related to something as simple as renaming the file or converting the photographfrom JPEG to PDF format. (Tr. 467-69). In contrast to this speculative testimony, Inspector Perkins testified that the photograph fairly and accurately depicted the frost that he observed on the upper surface ofthe right wing ofN426SW on the morning ofDecember 7, 2011. (Tr. 51). He also testified that the photograph itselfhad not been modified since itwas captured using his phone. (Tr. 86). The ALIfound Inspector Perkins's testimony to be truthful and credible. (See Decision at 18). Therefore, the ALl's failure to give probative value to Inspector Perkins's photograph is withoutmerit. N426SW did not receive an application ofde-icing fluid between the time that Inspector Perkins photographed and observed the frost andthe aircraft's takeoff. (Resp'tResp. to Req. for Admis. No.2; Tr. 36-37, 264-270). Given Thomas Bond's testimonythe weather conditions that morning, including temperature and dew point, were conducive to frost formation (Tr. 198-199), this fact is sufficient to permit 8a "reasonable inference" that thatthe frost observedby Inspector Perkins at 7:48A.M. was still present at N426SW's 8:08A.M. takeoff. See Hereth, FAA OrderNo. 95-26, !995 WL 853896, at *7 ("Administrator

was only required to present evidence sufficient to support a reasonable inference that the engine failure

was due to respondent's fuel mismanagement."); Am. W. Airlines, FAA Order No. 96-3, 1996 WL 210094, at *13 (finding Complainant presented enough evidence inits case-in-chiefto raise a "reasonable inference" that aircraft no longer conformed to its original type design). Despite Respondent's contention to the contrary, the absence ofdirect evidence that the frost photographed by Inspector Perkins still existed at takeoffis notfatal to Complainant's case. See, e.g., Cont'l Airlines, Inc., FAA OrderNo. 98-6, 1998 WL 231441, at *2 (statingthat "governing case law indicates that direct evidence is not required"). Circumstantial evidence leading to the reasonable inference that it wasmore likelythan notthat the frost observed byInspector Perkins existed atN426SW'stakeoffis sufficientto sustain Complainant's burden ofproof. See Proud v. C.A.B., 357 F.2d 221, 224 (7th Cir. 1966) (findingthat circumstantial evidence creating a "strong inference" ofviolation sustained Complainant's burden ofproofby substantial evidence). Although Respondent contends that an intervening event- i.e., the 16 minutes between whenN426SW began to push backfrom the gate andthe aircraft's 8:08A.M. takeoffnegates a reasonable inference ofviolation, it is not incumbent upon Complainantto "exclude every conceivable possibility ofan intervening [event]" in order to meet its burden. ld5 Respondent's argumentthat the frost may have sublimated during this time period is properly characterized as a defense to Complainant's allegations. Cf. In the Matter ofCont'l Airlines, Inc., FAA OrderNo. 90-18, 1990 WL 656271, at *6-7 (Aug. 22, 1990). Complainant is notrequired to negate a respondent's defense in orderto prove aprima facie case. Administrator v. Specht, 25 C.A.B. 859 (April I,

5 The Respondent in Proud argued that all possibilities that the unairworthy condition ofan aircraft originated subsequent to his certification ofthe aircraft as airworthy should have been affirmatively excluded in order to sustain Complainant's burden ofproof. The court found, however, that Complainant had established aprima facie case through circumstantial evidence and was not required to exclude every conceivable possibility ofan intervening cause in order to meet its burden. Proud, 357 F.2d at 224. 91957), affd Specht v. CAB, 254 F.2d 905, 914-15 (8th Cir. 1958).6 Appliedhere, this premise holds that Complainantwas not required to disprove the possibility ofsublimation in orderto carry its burden. Rather,

once Complainantestablished a

### primafacie case ofthe existence offrost, the burden shifted to Respondent to produce rebuttal evidence demonstrating that the frost observedby Inspector Perkins was not still present at takeoff. 2. Respondent Failed To Rebut Complainant's 

### Prima Facie Case. Complainant established a primafacie violation of 14 C.P.R.§§ 119.5(g) & 

### (1), 121.629(b), and 91.13(a), by introducing circumstantial evidence sufficientto support a reasonable inference that Respondenttook offN426SWwith frost present on the upper surface ofthe aircraft's wings. Once this

was established, Respondent was obliged to offer evidence in rebuttal. Proud, 357 F.2d at 224; Hereth, FAA OrderNo. 95-26, 1995 WL 853896, at *7. To do so, Respondent introduced the experttestimony Dr. Perry, who opined that the frost observedbyInspector Perkins would nothave still been present at takeoffbecause it would have sublimated duringthe intervening minutes between N426SW's pushback and its takeoff. (See Tr. 537-541). To counter this testimony, Complainant offered the expert opinion of Dr. Rasmussen who testified that an error with Dr. Perry's heat balance equation and several unfounded assumptions used to derive his energy calculations invalidated Dr. Perry's conclusion. (See Tr. 639-652). Therefore, Respondent failed to overcome Complainant's

### primafacie case because: (1) Dr. Perry's opinion thatthe frost would have sublimated duringN426SW's taxi lacked the logic, depth, and persuasiveness sufficientto rebut complainant's evidence; and (2) Respondent failed to rebut Complainant's evidence because the ALJ found that Respondents' experts "ultimatelyrebutted each other."

6 See In the Matter ofHigh Exposure. Inc., FAA Order No. 2003-7, 2003 WL 22480443, at *6 (Sept. I0, 2003) (Complainantnotrequired to disprove Respondent's argument that records ofAD compliance could exist at other maintenance shops in orderto demonstrate an aircraft was unairworthy). See also Gullatte v. Potts, 654 F.2d 1007, 1015 (5th Cir. 1981) (tinding trial court erred by placing burden on plaintiffto disprove a qualified immunity defense, rather than simply requiring plaintiffto establish aprima facie case); Jalil v. Avdel Com., 873 F.2d 701, 707 (3d Cir. 1989) (fmding plaintiffdid not have to disprove

**insubordination~** a defense in employment discrimination action- to succeed at the first level ofproof, because "it is more logically a defense that is raised at the second level to meet the plaintit1's prima facie case ofdiscrimination"). 10a) Respondent's Expert's Opinion thatthe FrostWould Have Sublimated During N426SW's Taxi Lacks Logic, Depth, and Persuasiveness. Experttestimony is not evaluated onthe basis ofcredibility, but on its logic, depth, and persuasiveness. In the Matter ofValley Air Servs., Inc., FAA OrderNo. 96-15, 1996 WL 336051, at *3 (May 3, 1996).7 Here, Respondent's rebuttal to 

### Complainant'sprimafacie case rests onDr. Perry's expert testimony thatthe frost would have sublimatedprior to takeoff; constructing a heatbalance equation, Dr. Perry testified thatthe amount ofenergy available for sublimation was greaterthanthe energy necessary to completely sublimate the amount offrostpresent on N426SW's wings. (See Tr. 524- 541). Yet, as explained by Dr. Rasmussen, an expert in aviation weather who holds a Ph.D. in atmospheric science (Tr. 627-30), to reach this unsound conclusion Dr. Perry: (I) overestimates the amount ofradiation from the atmosphere that was available for sublimation; (2) relies on a generous speculation as to howlong N426SW was in sunlight; and (3) uses an unsubstantiated frost thickness to calculate the amount ofenergy required for sublimation. (See Tr. 634-652). Therefore, Dr. Perry's opinion lacks the logic, depth, and persuasiveness necessary to rebut complainant's

### primafacie case ofviolation.

1. Dr. Perry Overestimates the Amount ofRadiation from the Atmosphere that was Available for Sublimation. To supporthis opinion that the frost would have sublimated, Dr. Perry used a heat balance equation to divine N426SW's wing'sheating/cooling rate, and in tum, used this rate to determine howmuch energy would be required to sublimate the frost present on the aircraft's wing. (Ex. R-4 at 5). This heat balance equation is comprised ofseveral terms, including the absorption ofinfrared energy from the atmosphere, the absorption ofsolar radiation, and the emission ofinfrared energy from the wing to the atmosphere. (Ex. R-4 at 5). Dr. Perry derived two ofthese terms, specifically the absorption ofinfrared energy from the atmosphere andthe emission ofinfrared energy from the wing, from the Stephan-Boltzman Law, which calculates the amount ofenergy emitted by an object. (Ex. R-4 at 4-6).

7 Findings ofthe ALJ based on the testimony ofexpert witnesses do not deserve the deference accorded to an AU's factual findings based upon his assessment ofwitness credibility. In the Matter ofGriffin Avionics, Inc., FAA 2007- 9,2007 WL 3159418, at *5 (Aug. 2, 2007). 11However, as explained by Dr. Rasmussen, the Stephan-Boltzman equation specifically calculates the radiation emitted from a black body object. (Tr. 645). A black object radiates efficiently. (Tr. 645). But neither the atmosphere nor N426SW's wing are black objects; therefore, they do not radiate as efficiently

as the Stephan-Boltzman Law calculates. (Tr. 646-47). What is missing from Dr. Perry's equations, thus, is

an emissivity factor that would compensate for this phenomenon. (Tr. 646). Therefore, as explained by Dr. Rasmussen, both ofDr. Perry's tenns for the absorption ofinfrared energy from the atmosphere and the emission ofinfrared energy from the wing are too high; each shouldhave been multiplied by a reduction factor to account for the decreased emissivity rate ofa non-black object. (Tr. 646-47). In particular, Dr. Perry vastly overestimated the first term in his heat balance equation, the absorption ofinfrared energy from the atmosphere, which represents the amount ofinfrared heating that is coming from the sky. (Tr. 643). Dr. Perry's calculations presume that the air radiates as a blackbody. (Tr. 649). Butthe air, comprised primarily ofoxygen and nitrogen, does not. (Tr. 649). This overestimation is apparent, Dr. Rasmussen explains, because even adjusting the heat balance equation to
zero solarradiation, which is equivalent to nighttime conditions without any sunlight, frost would not have formed given Dr. Perry's calculations. (Tr. 644). But it was these overestimated terms that Dr. Perry used to calculate the amount ofenergy available to sublimate the frost. (Ex. R-4 at 4-7). Thus, the actual energy available from the atmosphere is significantly less than that which Dr. Perry calculated, rendering his ultimate conclusion thatthere existed enough energy to sublimate the frost on N426SW's wing invalid. (Tr. 652).

n. Dr. Perry's Conclusion Relies on a Generous Speculation as to How Long N426SW was in Sunlight. To determine whether there existed enough energyto sublimate the frost present on N426SW's wing, Dr. Perry multiplied the wing's heating/cooling rate, which he derived from his heat balance equation, by the amount oftime in minutes thatN426SW was exposed to atmospheric and solar radiation. (Ex. R-4 at 5-7). This heat balance equation accounts for a constant amount ofsolar radiation (specifically, 8.3 W m"2), approximated using sunlight measured at 8:00A.M. on December 7, 2011 at a point 20 miles 12north ofSLC. (Ex. R-4 at 5, 7). The wing's calculated heating rate, therefore, presumes a constant rate of sunlight. Once he calculated this heating rate, he multipliedthis term by 17 minutes (Ex. R-4 at 7)- which is the amount oftime between the point at whichN426SW's wheels began moving and the aircraft took off. Therefore, Dr. Perry's ultimate conclusion thatthere was 21,318joules ofenergy available for frost sublimationpresumes thatN426SW was exposed to 17 minutes ofconstant sunlight. (See Ex. R-4 at 7). The evidence, however, does not establish thatN426SW was necessarily in sunlight for 17 minutes. Itcan be concluded from the Aircraft Communications Addressing andReporting System (A CARS) that the aircraft began to push back at 7:52A.M., which is the point atwhich the aircraft's tires began rolling. (Ex. A-6; Tr. 280). Butthis pushback movement is slow; the aircraft's departure from the gate is not done under its own power, butrather through the use ofa tug. (Tr. 271, 280). Ittookthe aircraft six minutes in total to push back before the brake was set again at 7:58A.M. (Ex. A-6; Tr. 288). When N426SW began its pushback, it was parked in the shadow ofthe terminal building and was not exposed to sunlight. (Tr. 115, 170). But once it pushed back, it would have been in sunlight. (Tr. 117). It is not possible, however, to determine at whatpoint during this six minute movementN426SW emerged from the shadow cast by the terminal building. Nor is it possible to know ifthe aircraft was moving at a uniform speed during this pushbackmovement; ACARS data does not show distance,justtime. (See Ex. A-6). There is no way to tell from the ACARS data or the testimony in the record where, physically, alongN426SW'spushbackpath the aircraft was at any given moment. 8 By way ofillustration, it isjust as conceivable that the aircraft moved ten inches backwards in the first five minutes as it is that the aircraft moved ten feet. Thus, the only logically sound conclusion that can be drawn from this data is that the aircraft entered sunlight at some point between when the wheels began moving at 7:52A.M. andwhen they stopped at 7:58A.M. (Ex. A-6; 286-89). Because the aircraft took offat 8:08A.M., it can be inferred that N426SWwas in sunlight for a length oftime anywhere between ten to 16 minutes. Decreasingthe length of time N426SWwas exposed to sunlight decreases the amount ofenergy available for sublimation. Byway ofillustration, ifN426SW remained in the terminal building's shadow for five ofthe total six pushback

8 Captain Gibbs testified simply that it was a standard pushback and exit. (Tr. 272-73, 277). 13minutes, this would leave only I 1minutes ofsolar and atmospheric radiation available for sublimation at the levels calculatedby Dr. Perry. Substituting 11 minutes (in place ofDr. Perry's assumed 17), 

### ceteris paribus, yields an available amount ofenergy for sublimation of just 13,794joules. (See Ex. R-4 at 7: 20.9 W m·2 x II minutes x 60 seconds= 13,794 

### J m·2 ofenergy). This is less than the 14,250joules of energy Dr. Perry calculated would be necessary to sublimate the frost completelyprior to N426SW's takeoff. (Ex. R-4 at 7). Accordingly, Dr. Perry's assumption that there existed enough energy available for complete frost sublimation relies on an unsubstantiated assumption about the amount ofsolar radiation to which N426SW was exposed.

Ill. Dr. Perry Uses an Unsubstantiated FrostThickness to Calculate the Amount of EnergyRequired for Sublimation. Evenusing Dr. Perry's overestimation ofatmospheric radiation and his speculative estimate of N426SW's sunlight exposure, his calculations using his heat balance equation do notprove that the frost on N426SW's wing would have sublimated by the time the aircraft took off. This is because Dr. Perrybases his estimate ofhow much energy would be required to sublimate the frost onN426SW's wing on an assumption ofthe maximum amount offrost, 

### i.e., the thickness, that could have possibly formed during the relevant time period. (Tr. 527). To do so, he used a chart derived from a mathematical model created by NASA that modeled frost formation on airfoil in four different ambient conditions. (Tr. 526). Usingthis chart, he selected an ambient condition that "mostclosely corresponds" to the ambient conditions at SLC

on December 7, 2011, and used these conditions to estimate an "upper bound" for the growth ofthe frost. (Tr. 526-27). From these assumed conditions, he determined that the maximum thickness ofthe frost "would have been about halfthe thickness ofa piece ofpaper" or about 0.05 millimeters. (Tr. 528-29, 561 ). Dr. Perry then used this rough estimate ofthickness to calculate the amount ofenergy that would be required to completely sublimate the frost, arriving at 14,250joules ofenergy permeter squared. (Tr. 535). Accordingly, Dr. Perry's conclusion about how much energy would be required to sublimate the frost onN426SW's wing is entirely reliant on the thickness ofthe frost. (Tr. 559). Indeed, Dr. Perry characterizes the thickness as "akey ingredient in the calculation." (Tr. 559). ButDr. Perry's estimate is 14purely speculative, and has only a tenuous relationship to the evidence developed athearing andthe actual conditions that existed at SLC on December 7, 2011. On cross-examination, Dr. Perry admitted that he did not input the actual atmospheric conditions that existed at SLC into the mathematical formula derived by NASA; instead, he approximated the thiclmess by using a chart consisting ofset ofhypothetical ambient conditions. (Tr. 570-72). Although he suggests thatthese hypothetical conditions were the "closest analog" (Ex. R-4 at 7) to the meteorological conditions observed at SLC, even Dr. Perry testified that the hypothetical conditions from which he drew his conclusion used both a different temperature and different amount ofmoisture in the air from those which actually existed at on December 7, 2011. (Tr. 526, 571). In contrastto this speculative assumption, Inspector Perkins, who actually viewed, observed, and touched the frost in question, testified that the frost was as thick as, ifnotthickerthan, a piece ofpaper. (Tr. 31-33). This is double the amount offrost that Dr. Perryused in his estimation. (Tr. 641 ). Dr. Rasmussen and Dr. Perry both agree that ifthe amount offrost on N426SW'swing was greater than Dr. Perry's assumption, the amount ofenergy that would be required to sublimate itwould be greater as well. (See Tr. 561, 641-42). Infact, doubling the thickness ofthe frost would have the effect ofdoubling the amount ofenergy required to eliminate that frost. (Tr. 642). Therefore, even presuming, 

### arguendo, that Dr. Perry's heatbalance equation was logical and persuasive, it does notprove that the frost would have sublimated. Doubling Dr. Perry's estimate ofthe energy needed for sublimation- which he calculated as 14,250joules (Tr. 535)- produces a new estimate of28,500joules ofenergy needed to sublimate the frost on N426SW's wingpriorto takeoff. Dr. Perry's

own heatbalance equation, even using his generous sunlight estimation and overestimation ofavailable radiation,9 suggests that there would be only 21,318joules ofenergy available for sublimation. (Ex. R-4 at 7). By Dr. Perry's own admission, ifthe energy required to sublimate the frost was higher than 21,318 joulespermeter squared, some frost would have remained at takeoff. (Tr. 563). Such is the case here: given Inspector Perkins testimony thatthe frost was 0.1 millimeters thick, 28,500joules ofenergy- higher than the amount ofenergy Dr. Perry calculated was actually available- would be required to completely

9 See subparagraphs (a)(i) and (a)(ii) above. 15sublimatethe frost. Thus, his conclusion that the frost observed by Inspector Perkins would have completely sublimated by the time the aircraft took offis invalid. (See Tr. 641-42, 652). Forthe foregoing reasons, Dr. Perry's experttestimony is insufficient to rebut Complainant's

### prima facie case. Cf. Am. W. Airlines, FAA OrderNo. 96-3, 1996 WL 210094, at *13 (expert's "confusing and often unsubstantiated testimony lacked depth, logic and persuasiveness" and did not "compel a finding that America West did not violate Section 43.13(a)"). Because Dr. Perry's testimony is not persuasive onthe issue ofwhetherN426SWtook offwith frost on its wing, his opinion does not does not supportthe ALJ's finding; rather, the preponderance ofthe evidence demonstrates that Respondent violated 14 C.F.R. §§ 119.5(g) & 

### (1), 121.629(b), and 91.13(a) as alleged in the Complaint. b) The ALJ Found that Respondent's and Complainant's Experts "Ultimately Rebutted Each Other." Thus, Respondent Failed to Rebut Complainant's

### Prima Facie Case. Even assuming Respondent's experttestimony held the requisite depth and logic necessary to be persuasive, his testimony is insufficient to rebut Complainant's

### prima.facie case. At the conclusion of Complainant's case-in-chief, Respondent moved forjudgment in its favor seeking dismissal ofthe Complaint. (Tr. 237-42). To grant a motion to dismiss atthis stage in the hearing, an ALJ must find that Complainant has failed to present a

### prima.facie case. See, e.g.. Administrator v. Segura, NTSB Order No. EA-3848, 1993 WL 87679, at *I (1993). A prima facie case has been made, and consequently a motion to dismiss will not be granted, ifthere is "sufficientproofto support a finding ofviolation, disregarding evidence to the contrary." Administrator v. Kiscaden, NTSB Order EA-3618, 1992 WL 172760 at *3 n.4 (1992). Here, the ALJ denied Respondent's motion at the hearing and affirmed this ruling in his decision, finding that "Complainanthad met its initial burden ofproof." (Decision at I0). Once Complainant established a

### prima.facie case, the burden shifted to Respondent to produce evidence sufficientto rebut the evidence in Complainant's case-in-chief. Hereth, FAA OrderNo. 95-26, 1995 WL 853896, at *7; Am. W. Airlines, FAA Order No. 96-3, 1996 WL 210094, at *13. Here, the ALJ found thatDr. Perry's testimony and Dr. Rasmussen's testimony "ultimately rebutted each other." (Decision at 18). Accordingly, the ALJ essentially found that Dr. Perry's testimony, and consequentlyhis 16

### opinion thatthe frost would have sublimated, was ultimately rebutted byDr. Rasmussen, Complainant's rebuttal witness. (Decision at 18). Absent Dr. Perry's opinion on sublimation, Respondent failed to set forth sufficientevidence and testimonyto rebutthe reasonable inference that it was more probable than not thatthe frost existed at takeoff. When a respondent fails to rebut Complainant's evidence, Complainant has met its burden and the preponderance ofthe evidence supports a finding ofviolation. Cf. In the Matter of High Exposure, Inc., FAA OrderNo. 2001-2, 200I WL 629389, at *2 (May 15, 200I) (ALJ correctly found
a violation operation once Complainant established a

### prima facie case ofreckless operation and Respondent's failed to prove that someone else operated the flight). Here, Respondent's failure to rebut the Complainant's

### primafacie case ofthe existence offrost attakeoffsupports a finding that Respondent took offN426SWin violation of 14 C.P.R.§§ 119.5(g) & 

### (1), 121.629(b), and 91.13(a). VI. CONCLUSION For all ofthe foregoing reasons, Complainant respectfully requests that the Administrator reverse the ALJ's conclusion that Complainant failed to meet its burden ofestablishing by a preponderance ofthe evidence that Respondent took off N426SW with frost present on its wing in violation of 14 C.F.R. §§ 119.5(g) & (1), 

### 121.629(b), and 91.13(a).

By:

Dated: August21, 2015 Respectfully submitted, Peter J. 

### Lynch Assistant ChiefCounsel for nforcement

Casey E. Gardn r, Enforcement Di isi Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Ave., S.W. Washington, D.C. 20591 Telephone: (202) 267-5964 Facsimile: (202) 267-5106

17CERTIFICATE OF SERVICE Ihereby certify that on this date I have sent the foregoing Complainant's Appeal Briefby U.S. certified mail, return receipt requested, postage prepaid, to: Todd Emerson, Esq. SkyWest Airlines, Inc. 444 South River Road St. George, UT 84790 In addition, I certify that I have on this date personally delivered the original and one copy ofthe foregoing document to: Attn: HearingDocket Clerk, AGC-430 Wilbur Wright Building- Suite 2WI000 FederalAviation Administration 600 Independence Avenue SW Washington, DC 20591

Dated: August 21, 2015

18