FEDERAL AVIATION 

ADMINISTRATION 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

Complainant, Docket No. 2011NM06005 

FDMS No. FAA 2012-0777 

v. 

SKYWEST AIRLINES 

Respondent. 

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COMPLAINANT'S APPEAL BRIEF 

RECE' 

~I\n=o II!. "' .~ t.....w 

JUL 1 6 2015 

HEARING DOCKET 

Pursuant to section 13.233(d) of the Rules ofpractice, 14 C.F.R. § 13.233(d), Complainant files 

this brief in support of its appeal oftbe Initial Decision issued by Administrative Law Judge Richard C. 

Goodwin (ALJ) on April22, 2015, in the above-captioned matter. 

I. STATEMENT OF THE CASE 

On June 21, 2012, Complainant issued a Final Notice of Proposed Civil Penalty alleging tbat 

Sky West Airlines (Sky West) released, dispatched, and operated a Bombardier CL-600-2024 civil aircraft, 

N822SK, on 17 flights when tbe aircraft did not conform to all applicable conditions and limitations 

contained in the Minimum Equipment List (MEL) and, thus, was in an unairworthy condition. On these 

facts, Complainant alleged violations of 14 C.F.R. § 119.5(g), for operating as an air carrier in violation of 

its Operations Specifications (OpSpecs); 14 C.F.R. § 119.5(1), for operatingN822SK under Part 121 in 

violation ofSkyWest's OpSpecs; 14 C.F.R. § 121.628(a)(5), for taking offN822SK with inoperable 

equipment without operating under all applicable conditions of the MEL; 14 C.F.R. § 121.605, for 

dispatching N822SK when the aircraft was not airworthy; and 14 C.F.R. § 121.153(a)(2), for operating 

N822SK in an unairworthy condition. This Final Notice proposed assessing a $142,500 civil penalty for 

these violations. In response, Respondent requested a hearing and Complainant filed a Complaint 

containing above-listed allegations. 
Prior to the hearing, Complainant filed a Motion for Decision. On review of this motion, and 

because both parties agreed that no hearing was necessary as there was no genuine dispute as to any 

material fact, on February 4, 2014, the ALJ issued an Order Staying Proceedings and ordering written 

submissions by the parties. In response to this Order, on March 21, 2014, Respondent filed a Rebuttal to 

Complainant's Motion for Decision and a cross Motion for Decision. In tum, Complainant filed a Rebuttal 

on March 27, 2014, and Respondent filed a subsequent Rebuttal on April11, 2014. In consideration of 

these submissions, on April22, 2015, the ALJ issued an Initial Decision assessing an $11,998 civil penalty 

and finding that Respondent violated 14 C.F.R. §§ 119.5(g), 119.5(1), 121.605, and 121.153(a)(2), but that 

Complainant failed to prove by a preponderance of the evidence that Respondent took offN822SK with 

inoperable equipment in violation of 14 C.F.R. § 121.628(a)(5). Complainant now appeals the ALJ's 

Initial Decision. 

II. STATEMENTOFTHEFACTS 

On October 18, 20 I 0, a flight crew reported a "PACK FAULT" status message as a discrepancy in 

the maintenance log ofN822SK. (Compl. ~ 6; Answer~ 6). This status message, indicating a mechanical 

irregularity with the Air Conditioning System, was deferred by Respondent using Sky West Standard 

Practice (SP) 9175, MEL 27-51-4a. (Compl. ~ 7; Answer~ 7). In order to properly defer this discrepancy 

under MEL 27-51-4a, a maintenance or flight crew personnel is required to "verifY operation of the pack 

discharge pressure sensor by interrogating the MDC [Maintenance Data Computer]" once per flight day 

and make a corresponding entry in the maintenance log of the aircraft indicating completion of this 

required action. (Compl. ~ 8; Answer~ 8; Ex. A to Respondent's Motion). A "flight day" is defined in 

Sky West SP7555, Definitions and Acronyms, as a 24-hour period from 3:00AM to 3:00AM local time 

during which at least one flight is initiated for the affected aircraft. (Compl. ~ 9; Answer~ 9). The Aircraft 

Maintenance Log for N822SK reveals that Respondent completed MEL 27 -51-4a's required verification on 

October 18, 2010, but not again until October 21, 2010. (Ex. I to Complainant's Motion). In fact, 

Respondent admits that it failed to complete this once-daily verification on each of the intervening flight 

days of October 19, 20 I 0, and October 20, 2010 (Respondent's Motion at 3), despite the fact that it 

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operated N822SK in commercial service on these days. (Ex. 3 to Complainant's Motion at 5). According 

to the Aircraft Flight Log, Respondent operated N822SK on nine flights on October 19,2010, and eight 

flights on October 20, 2010. (Ex. 4 to Complainant's Motion). Therefore, Respondent operated N822SK 

on a total of 17 flights between October 19,2010 and October 20,2010, when the daily verification of the 

pack discharge pressure sensor required by MEL 27 -51-4a was not completed. 

On this evidence, the ALJ issued an Initial Decision finding that the preponderance of the evidence 

established that Respondent violated 14 C.F.R. §§ 119.5(g), 119.5(1), 121.605, and 121.153(a)(2), but not 

14 C.F.R. § 121.628(a)(5). The latter section provides: "No person may take off an airplane with 

inoperable instruments or equipment installed unless ... The airplane is operated under all applicable 

conditions and limitations contained in the Minimum Equipment List." In explaining his failure to find a 

violation of§ 121.628(a)(5), the ALJ stated that there "was no evidence that any instrument or equipment 

was inoperable on N822SK" on the relevant dates. (Decision at 10). 

The ALl also assessed an $11,998 civil penalty against Respondent, comprised of a $5,999 civil 

penalty for each of the two violations of 14 C.F.R. § 119 .5(g) - i.e., for Respondent's operation as an air 

carrier in violation of its OpSpecs, which allowed Respondent to defer maintenance using, and complying 

with all applicable conditions and limitations of, an approved MEL. (Decision at 12, 15). In further 

explaining this sanction assessment, the ALJ stated that he assessed a penalty for each flight day -

October 19th and 201

h- on which Respondent failed to verify the operation of the pack discharge pressure 

sensor and document this check in accordance with MEL 27-51-4a. See id. 

However, despite finding violations of sections 119.5(1), 121.605, and 121.153(a)(2), the ALJ 

declined to assess a civil penalty for Respondent's operation of the aircraft on 17 separate occasions in an 

unairworthy condition. !d. at 15. This, he explained, was because he considered the 17 flights to be 

"strictly residual" violations to the "original failure to annotate the AML [Aircraft Maintenance Log] on 

two (2) separated [sic] dates." !d. Moreover, the ALJ inexplicably found that "[t]here was no evidence 

when the seventeen (17) cycles took place, i.e., whether the flights all occurred on 18, 19, 20 and/or 21, 

2010 or some other combination of those dates" (Initial Decision at 9), despite the attachment of the 

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Aircraft Flight Logs indicating that Respondent operated N822SK on nine flights on October 19, 2010 and 

eight flights on October 20, 2010. (See Ex. 4 to Complainant's Motion). Thus, the ALJ held that no civil 

penalty was warranted for these flights. 

III. STATEMENT OF THE ISSUES 

A. Whether the ALJ Erred by Failing to Find that Respondent Took OffN822SK with 

Inoperable Equipment in Violation of 14 C.F.R. § 121.628(a)(5). 

B. Whether the ALI's Conclusion that the 17 Separate Occasions on Which 

Respondent Operated N822SK in an Unairworthy Condition Due to the Failure to 

Comply with the Requirements ofMEL 27-51-4a were "Residual Violations" is 

Contrary to Law, Precedent, and Policy. 

C. Whether $142.500 is an Appropriate Civil Penalty for Respondent's 19 Separate 

Violations of the Federal Aviation Regulations. 

IV. STANDARD OF REVIEW 

Under the Rules of Practice, the Administrator considers on appeal whether the ALI's findings of 

fact are supported by a preponderance of reliable, probative, and substantial evidence. 14 C.F.R. 

§ 13 .233(b )(I). The Administrator also considers whether the ALJ' 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 during the hearing or proceedings. 14 C.F.R. 

§ 13.233(b )(3). Complainant bears the burden of proving the appropriateness of the civil penalty, but 

Respondent bears the burden of proof of an affirmative defense, such as corrective action. See 14 C.F .R. 

§ 13.224(a); In the Matter of Seven's Paint & Wallpaper Co., FAA Order No. 2001-6 (May 15, 2001). 

V. ARGUMENT 

A. Respondent Took OffN822SK with Inoperable Equipment on 17 Flights Without Complying with 

the Requirements of MEL 27-51-4a, in Violation of 14 C.F.R. § 121.628(a)(5). 

The ALJ erred by concluding that Respondent did not violate 14 C.F.R. § 121.628(a)(5). The plain 

text of 14 C.F.R. § 121.628(a)(5) provides, in pertinent part, that: 

(a) No person may take off an airplane with inoperable instruments or 

equipment installed unless the following conditions are met: 

(I) An approved Minimum Equipment List exists for that airplane. 

* * * 

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(5) The airplane is operated under all applicable conditions and 

limitations contained in the Minimum Equipment List and the operations 

specifications authorizing use of the Minimum Equipment List. 

A system or component is inoperative when it "malfunction[s] to the extent that it does not accomplish its 

intended purpose and/or is not consistently functioning normally within its approved operating limit(s) or 

tolerance(s)." See FAA Order 8900.1, Flight Standards Information Management System (Sept. 13, 2007), 

Vol. 4, Ch. 4, Sec. 1. See also Advisory Circular 91-67, Minimum Equipment Requirements for General 

Aviation Operations Under FAR Part 91 (June 28, 1991). 

Here, the ALJ found that on October 18, 2010, a flight crew reported a "PACK FAULT" status 

message as a discrepancy in the maintenance log ofN822SK (Compl. 'If 6; Answer 'I[ 6), and that this 

discrepancy, which indicated a mechanical irregularity with the Air Conditioning System, was deferred 

under MEL 27-51-4a. (Decision at 8-9; Compl. 'If 7; Answer 'If 7). The ALJ also found that Respondent's 

Aircraft Maintenance Log contained no entry showing that it verified the operation of the pack discharge 

pressure sensor in accordance with the conditions and limitations contained in the MEL on the flight days 

of October 19, 2010 and October 20, 2010. (See Decision at 8-9; Compl. '1['1[ 8 & 9; Answer '1['1[ 8 & 9; 

Ex. A to Respondent's Motion; Ex. 's 1, 3, & 4 to Complainant's Motion)1 However, despite making these 

findings, and despite Respondent's admission that it operated N822SK without completing the daily 

verification of the pressure sensor required by MEL 27-51-4a on the flight days of October 19 

and 20, 2010, the ALJ declined to find that Respondent violated 14 C.P.R. § 121.628(a)(5) because there 

"was no evidence that the equipment was inoperable." (Decision at 9). This fmding is premised on a 

1 Respondent has admitted on several occasions that it did not complete the once-daily verification required by MEL 27-51-

4a on the flight days of October 19, 2010 and October 20,2010. ~Respondent's Motion at 3; Ex. 2 to Complainant's 

Motion). Moreover, the Aircraft Maintenance Log for N822SK contains an entry dated "10/18/10" stating that Respondent 

deferred the "Pack fault status msg" using MEL 21-51-4a, but the log does not contain any entries referencing MEL 21-51-

4a on the dates of October 19" and 20". Respondent did, however, document the completion of this check by an entry 

dated "10/21/10."(Ex. I to Complainant's Motion). It is well established that the FAA may sustain its burden of proving 

that required maintenance has not been performed by relying on the absence of written maintenance entries. See In the 

Matter of Delaware Skyways, LLC. FAA Order No. 2005-6 (March 18, 2005) (FAA inspectors may rely on maintenance 

records to detennine whether maintenance has been done properly); In the Matter of Delaware Skyways, LLC. FAA Order 

No. 2005-5 (March 18, 2005) (in the absence of any countervailing evidence, maintenance records must be deemed to be 

accurate). Thus, Respondent's failure to comply with the requirements of the MEL on these flight days is not in dispute. 

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fundamental misunderstanding of the circumstances in which an air carrier would use, and the purpose for, 

an approved MEL. 

By way of background, the FAA has the statutory authority to establish minimum requirements for 

aircraft equipment. See AirLine Pilots Ass'n. Int'l v. FAA, 454 F.2d 1052, 1053 (D.C. Cir. 1971). The 

FAA, pursuant to regulation (i.e., 14 C.F.R. § 121.301 et seq.), publishes instrument and equipment 

requirements for all certificate holders. I d. The FAA also approves for particular types of aircraft an MEL, 

which permits the operation of an aircraft with inoperable equipment provided that the operator campi ies 

with specific conditions and limitations. In the Matter of Delta Air Lines. Inc., FAA Order No. 97-21 

(May 28, 1997). Accordingly, the express purpose of an MEL is to permit deferral of repairs to inoperable 

equipment using FAA-approved procedures? This is because inoperable equipment renders an aircraft out 

of conformance with its type certificate, id., and the use of an approved MEL procedure allows the 

operation of an otherwise unairworthy aircraft so long as the aircraft is operated under all applicable 

conditions and limitations set forth in the MEL. See § 121.628(a)(2); GoJet Airlines, LLC v. FAA, 

743 F.3d 1168, 1171 (8th Cir. 2014)3 It is therefore axiomatic that the purpose of using an MEL 

procedure- here, MEL 27-51-4a- is to defer repairs to inoperable equipment. 

The ALJ's unsupported finding that the "air conditioning was always functioning on N822SK," 

(Decision at 9), is not dispositive of inoperability; whether or not the air conditioning appeared to be 

functioning is not the appropriate inquiry to ascertain whether Respondent violated§ 121.628(a)(5)! 

Rather, the pertinent question is whether N822SK's Air Conditioning System, or at least one component of 

that system, "malfunction[ed] to the extent that it [did] not accomplish its intended purpose and/or is [was] 

2 See Minimum Equipment List (MEL) Requirements, 56 FR 12306-01 (Mar. 22, 1991) ("The concept of the Minimum 

Equipment List (MEL) was developed when it was recognized that a flight or series of flights might be continued with 

certain inoperable instruments and equipment under appropriate circumstances."). 

3 See also In the Matter of Horizon Air Industries, Inc., FAA Order No. 95-11 at 5 (May 10, 1995) (policy purpose of 

"permitting a short deferral of maintenance under the MEL" is to "strike[ s] a balance between having all equipment in 

good working order and the air carrier's operational needs"). 

4 Respondent suggests in its Motion that the only issue here is with the cabin temperature. (See Respondent's Motion at 1-

3). However, this argument misses the point. The "PACK FAULT" message indicating a mechanical irregularity with the 

Air Conditioning System evidences that at least some component of that system was not functioning normally or 

accomplishing its intended purpose. Thus, it is inoperable within the meaning of§ 121.628(a)(5), regardless of whether the 

aircraft cabin remained an appropriate temperature despite this discrepancy. 

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not consistently functioning nonnally within its approved operating limit(s) or tolerance(s)." Here, 

Respondent's receipt of the "PACK FAULT" status message and deferral of this discrepancy using MEL 

27 -51-4a evidences malfunctioning equipment. 5 Indeed, Respondent admits that this error message 

signifies a mechanical irregularity with this system. (See Compl. 1 6, Answer 1 6). An "irregularity" 

logically evidences lack of nonnal function, despite the superficial impression that the air conditioning 

system appeared to be functional. 

Moreover, the ALJ' s reliance on the fact that a later investigation by Respondent detennined that 

the pack discharge pressure "sensor was functioning nonnally" is similarly misguided. (Decision at 9). As a 

threshold matter, the Administrator has previously held that an aircraft flown without a required inspection 

is not retroactively rendered airworthy simply because a later inspection detennines the aircraft to be 

undamaged. In the Matter ofUSAir, Inc., FAA Order No. 96-25 (Aug. 12, 1996). The same premise holds 

here; it cannot be deduced that the sensor was functioning nonnally on the flight days Respondent failed to 

complete the once-daily verification required by MEL 27-51-4a simply because it was later found to be 

functional. Moreover, although Respondent purports that the sensor was "functioning normally," both the 

ALJ and Respondent agreed that the sensor "was not communicating properly with the aircraft computer." 

(See Respondent's Motion at 2; Decision at 12). 6 This fmding shows, at the very least, that a sensor, which 

was not communicating properly, was inherently malfunctioning to the extent that it did not accomplish its 

intended purpose. Given the admitted mechanical irregularity with this system, Respondent provides no 

support for the proposition that a functional sensor indicates that the "PACK FAULT" status message was 

not indicative of a discrepancy. Accordingly, because Respondent operated N822SK on 17 flights with 

inoperable equipment without verifYing the operation of the pack discharge pressure sensor once per flight 

day on the flight days of October 19,2010 and October 20,2010, as required by MEL 27-51-4a (Ex. 1 & 2 

5 The conclusion that at least some portion of the Air Conditioning System was inoperable is supported by the plain text of 

MEL 27-51-4a itself; the "Placarding" section provides that, when complying with MEL 27-51-4a, "An Inoperative 

Placard will be placed on the Air Conditioning Control Panel indicating which channel is inoperative." (Ex. A to 

Respondent's Motion) (emphasis added). 

6 The ALJ found that '1he sensor failed to communicate with the aircraft computer." (Decision at 12). 

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to Complainant's Motion; Respondent's Motion at 3), Respondent did not operate N822SK under all 

applicable conditions and limitations contained in the MEL. Thus, Respondent violated§ 121.628(a)(5). 

B. The 17 Flights During Which Respondent Released, Dispatched, and Operated N822SK Without 

Complying with the Requirements of the MEL in an Unairworthy State are Independent Regulatory 

Violations and, Thus, are Not Residual to Respondent's Violation of§ 119.5(g). 

The ALJ correctly concluded that Respondent's operation ofN822SK without complying with the 

requirements of MEL 27-51-4a supported a finding of violation of 14 C.F.R. §§ 119.5(g), 119.5(1), 

121.605, and 121.153(a)(2). These findings are supported by case law and by a preponderance of the 

reliable, probative, and substantial evidence7 However, in assessing a sanction for these violations, the 

ALJ assessed a penalty only for Respondent's two violations of section 119.5(g): specifically, one violation 

for each flight day that Respondent "operated as a direct air carrier'' and failed to complete the daily 

verification required by the MEL. (See Decision at 12-15). The ALJ declined to assess a penalty for the 

remaining operational (i.e., flight) violations, finding that the seventeen flights during which respondent 

dispatched, took off, and operated N822SK in an unairworthy condition were "residual" violations, 

because they "were not independent events." (Decision at 15). This conclusion is not only contrary to the 

plain text ofF AA' s statute and regulations, but is also contrary to precedent, and should be reversed. 

1. The Law Judge Erred by Failing to Find that the 17 Flights During Which Respondent 

Operated N822SK in an Unairworthy State were Separate Violations for Sanction Purposes. 

49 U.S.C. § 4630l(a)(2), which authorizes the FAA to assess civil penalties, states: "A separate 

violation occurs under this subsection for each day the violation ... continues or, if applicable, for each 

flight involving the violation." (emphasis added). The plain language of this statute establishes that the 

7 Respondent operated N822SK with an open maintenance discrepancy without performing the requirements of MEL 27-

51-4a on October 19 & 20, 2010. Accordingly, the ALI correctly found that Respondent violated section 121.605, by 

dispatching and releasing, and 121.153(a)(2), by operating, N822SK in an unairworthy condition when the aircraft did not 

conform to its type design. See In the Matter of Horizon Air Indus., Inc., FAA Order No. 95-11 at 4 n.33 (May 9, 1995) 

("Without a properly functioning altitude warning system, Respondenfs aircraft did not conform to its type design. 

Therefore, the aircraft was unairworthy even if it was in a condition for safe operation."); In the Matter of US Air. Inc., 

FAA Order No. 1996-25 at 12-13 (Aug. 12, 1996) (if a required inspection has not been performed, the aircraft cannot be 

considered "airworthy"): In the Matter of General Aviation. Inc., FAA Order No. 1998-18 at 13 (October 9, 1998) (an 

aircraft with unresolved mechanical discrepancies is unairworthy .). 

Respondent also violated§ 119.5(g) and (I) by operating as a direct air carrier and by operating N822SK under Part 121 in 

violation of Paragraph D095 of its OpSpecs, which required Respondent to defer maintenance using applicable conditions 

and limitations of the MEL. (See Compl.111f2-5; Answer~~ 2-5). 

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FAA may construe each flight as a separate violation for purposes of assessing a civil penalty. See Mills 

Music, Inc. v. Snyder, 469 U.S. !53, 164, (1985) ("In construing a federal statute it is appropriate to 

assume that the ordinary meaning of the language that Congress employed accurately expresses the 

legislative purpose."). The legislative history of this statutory provision makes the FAA's authority to 

assess penalties on a per flight basis, as appropriate, even clearer. Prior to 1987, 49 U.S.C. § 4630 I (a)(2) 

granted only the authority to assess a civil penalty for each day a violation continued. In 1987, through the 

Airport and Airway Safety and Capacity Expansion Act, Congress granted additional authority to the FAA 

to assess a civil penalty for "each flight" involving a violation. Pub. L. No. 100-223, I 0 I Stat. 1519 

(Dec. 30, 1987). The Conference Report relating to the passage of this Act explained that this "civil penalty 

increase provision[] clarifies the Federal Aviation Act by mandating that penalties be administered for 

violations which occur on each flight." 133 Cong. Rec. H11696, 1987 WL 953488 (statement of Rep. 

Molinari). This Report further clarifies that: 

The Federal Aviation Administration has interpreted the [Federal Aviation Act] in [a 

per-flight] fashion while airlines have interpreted the language as violations on a perday basis. The purpose of the act is to ground aircraft that violate safety rules 

immediately [and] not at the end of the day after finishing its routes across the country. 

The ultimate safety violation occurs when such a plane is in use. This language 

clarification will prevent any uncertainty in the minds of the carriers that we do not 

want them flying aircraft that do not meet the minimum standards of safety. 

Id. The congressional intent behind this civil penalty provision was to send a "strong and clear message to 

the airline industry that they must put safety first." ld. Accordingly, the Airport and Airway Safety and 

Capacity Expansion Act increased the monetary value ofF AA' s civil penalty assessment authority with the 

express purpose of generating "substantial" fines to "serve as a deterrent" effect. !d. Indeed, for an 

unairworthy aircraft, a safety risk exists each time the aircraft flies. 

In light of this explicit statutory authority, it is well-established by case law that each flight during 

which an aircraft is operated in an unairworthy state constitutes a separate violation. See. e. g .. In the Matter 

of Conquest Helicopters, Inc., FAA Order No. 94-20 (June 21, 1994) ("While the law judge was correct in 

finding that Respondent's round-trip flight with two takeoffs and landings consisted of two flights, he erred 

in concluding that the two flights constituted only one violation. Once the law judge found two flights, he 

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should have found that each flight was a separate violation."); In the Matter of Rushmore Helicopters, Inc., 

FAA Order (Oct. 11, 2012) (assessing a civil penalty for each violation of section 91.7(a) when 

Respondent operated an unairworthy aircraft on ten flights). 

Here, Respondent operated N822SK on 1 7 separate flights over the course of two flight days -

October 19 and 20,2010- on each of which Respondent failed to comply with the requirements of the 

MEL. (See Compl. -,[-,[ 2-5; Answer-,[-,[ 2-5; Request for Admission No. 9)8 On each of these 17 flights 

N822SK was unairworthy, see In the Matter of General Aviation, Inc., FAA Order No. 1998-18 at 13 

(October 9, 1998) (an aircraft with unresolved mechanical discrepancies is unairworthy), and on each of 

these 17 flights safety was jeopardized. By the plain text of 49 U.S.C. § 46301(a)(2), each flight constitutes 

a separate violation and warrants a separate imposition of a civil penalty. See 133 Cong. Rec. H11696. By 

failing to asses penalties for each of the 17 flights during which N822SK was unairworthy, the ALJ 

ignored the safety risk inherent in each flight. 

The regulatory language of these inherently operational violations provides further support for the 

conclusion that each flight is a basis for a separate penalty. By the plain text of§ 121.605, each of the 17 

times Respondent "dispatch[ ed] or release[ d]" N822SK for a flight in an unairworthy state is a separate 

violation; just as each of the 17 times Respondent "operated[ d] an aircraft" not in an airworthy condition is 

a separate violation of§ 121.153(a)(2); and each of the 17 times Respondent "operate[ d) an aircraft" in 

violation of its operations specifications constitutes a separate violation of§ 119.5(1). Thus, to the extent 

that the ALJ failed to find that each of the I 7 flights constituted an independent violation for purposes of 

assessing a civil penalty, this finding is contrary to precedent and to the plain text ofF AA's regulations and 

civil penalty authority in 49 U.S.C. § 46301(a)(2). Accordingly, the ALJ's finding is in error, and a 

8 The ALJ's inexplicable statement that "[t]here was no evidence when the seventeen (17) cycles took place, i.e. whether 

the flights all occurred 18, 19 20 and/or 21,2010 [sic] or some other combination of those dates" is incorrect. (Decision at 

9). The Aircraft Flight Logs attached as Exhibit 4 to Complainant's Motion demonstrate that Respondent operated N822SK 

on 9 flights on October 19, 2010 and 8 fights on October 20, 2010. Respondent admits that N822SK was flown on 17 flight 

cycles between October 19,2010 and the completion of the MEL 27-51-4a. (Response to Complainant's Initial Discovery 

Request, Request for Admission No. 9). This evidence is sufficient for a prima facie case, and the ALJ is not required to 

"speculate on which of the four days one or more of those flights took place." (Decision at 9). 

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separate sanction should be assessed for each of Respondent's 17 flights in violation of sections 119 .5(1), 

121.605, and 121.153(a)(2).9 

2. The ALJ's Characterization of the 17 Flights as "Residual" is Not Supported by Case Law. 

As previously explained by the Administrator: "A residual violation is one that flows solely from a 

respondent's violation of another, independent regulation." In the Matter of Rushmore Helicopters, Inc., 

FAA Order No. 2012-8, (Oct. 11, 2012). 10 A residual violation, therefore, is "not based on any 

independent event" and does not require additional findings. In the Matter of GoJet Airlines, LLC, FAA 

Order No. 2012-5 (May 22, 2012). As noted by Respondent in its Motion for Decision, the ultimate 

question is whether each cited regulatory violation "require[s] proof of a fact that the other did not." In the 

Matter ofFrostad Atelier, FAA Order. No. 2013-5 (Sept. 5, 2013). 

Under this precedent, and contrary to the AU's finding, Respondent's violation of sections 

119.5(1), 121.605, and 121.153(a)(2)- which are each premised upon a finding that Respondent operated 

N822SK in a manner contrary to the F ARs- are not "residual" to Respondent's violation of 

section 119.5(g). This is because these operational violations are based on independent events and are 

supported by separate facts. This premise is supported by the plain text of the regulations; as worded, a 

violation of§ 119.5(g) does not inherently require an element of aircraft operation. To wit, interpreting 

§ 119.5(g), which prohibits a person from operating as a direct air carrier in violation of appropriate 

operations specifications, as encompassing operational violations (i.e., flights) would render redundant 

9 Given that these provisions all proscribed the unairworthy operation of an aircraft (or operation of an aircraft in violation 

ofOpSpecs) Complainant is not seeking separate civil penalties for each of the three cited regulatory violations. 

10 As such, the "residual" doctrine is used almost always, if not exclusively, to find a violation of section 91.13 (careless 

and reckless operation) after an operational violation had been established. See ilL In the Matter of Go jet Airlines. LLC, 

FAA Order No. 2012-5 (May 22, 2012). ("Once tbe agency shows that a respondent has operated an unairworthy aircraft, 

then careless or reckless operation of an aircraft, a violation of Section 91.13(a), follows as a residual violation). An 

violation of section 91.13 is not alleged in this case. 

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§ 119 .5(1), which expressly prohibits operation of an aircraft in violation of appropriate operations 

specifications.[[ 

By way of illustration, here, Respondent violated § 119.5(g) by operating as a direct air carrier on 

the dates of October 19 & 20, 2010 without complying with the requirements of the MEL, as its OpSpecs 

required it to do. Thus, Respondent's violation of§ 119.5(g) is supported by a factual finding that 

Respondent deferred maintenance to N822SK's Air Conditioning System but failed to comply with the 

conditions and limitations of MEL 27-51-4a, contrary to the requirements of its OpSpecs. Inherently, this 

violation of§ 119 .5(g) does not require a finding that Respondent operated any particular aircraft. In 

contrast, the more specific provisions of sections 121.605, 121.153(a)(2), and 119.5(1) apply to 

Respondent's unairworthy operations and are based on these independent flights. Respondent violated 

§ 121.605, § 121.153(a)(2), and § 119.5(1) by operating an aircraft, here N822SK, with an open 

maintenance discrepancy on 17 separate occasions. The factual predicate for these operational violations is 

thereby premised on the 17 independent and temporally distinct flights on which Respondent dispatched, 

released, and operated N822SK in unairworthy condition. Accordingly, a finding of violation of sections 

121.605, 121.153(a)(2), and 119.5(1) requires a distinct factual event- i.e., the operation ofN822SK. 

Thus, although the ALJ determined that there were "no distinguishing factual elements" between the 17 

unairworthy flights Respondent's failure to complete the daily verification required by the MEL and its 

OpSpecs, this finding is in error; as explained above, there is a fundamental distinction between generally 

operating as an air carrier, and operating an aircraft. 

In any event, that Respondent operated 17 unairworthy flights supports an independent civil 

penalty for each flight. When an operational violation stems from an underlying maintenance failure, the 

plain language of 49 U.S.C. § 4630l(a)(2) dictates that each flight is an independent offense distinct from 

the requirement to adequately perform maintenance, and thus, requires the imposition of a civil penalty. 

See In the Matter of USAir. Inc., FAA Order No. 96-25 (Aug. 12, 1996) (finding the ALJ erred by failing 

11 A standard principle of construction is to construe statutes or regulations in the context of the entire statutory scheme and 

avoid rendering statutory provisions ambiguous, extraneous, or redundant. See. e.g .. Matter of Merchants Grain. Inc. By & 

Through Mahem, 93 F.3d 1347, 1354 (7th Cir. 1996). 

12 
to find that "USAir operated an unairworthy aircraft, a violation of§ 121.153(a)(2), on eight separate 

flights" after first finding a maintenance violation under§ 43.13(a)). This premise, applied here, holds that 

Respondent should be assessed separate violations for N822SK's 17 unairworthy flights independent from 

its failure to properly defer maintenance under the MEL. Therefore, the ALJ erred by finding that 

Respondent's unairworthy operation ofN822SK on 17 flights were "residual" to Respondent's underlying 

failure to complete the required MEL procedure. A civil penalty for each of Respondent's 17 unairworthy 

flights should be assessed against Respondent just as civil penalties should be assessed for each of 

Respondent's two failures to perform the daily verification required by the MEL. 

C. A $142.000 Civil Penalty is Appropriate for Sky West's 19 Regulatory Violations. 

Although the AU determined that Respondent violated 14 C.F.R. §§ 119.5(g), 119.5(1), 121.605, 

and 121.153(a)(2), he assessed only an $11,998 civil penalty. This civil penalty expressly accounts only for 

Respondent's two violations of§ 119.5(g). For the reasons discussed below, agency sanction guidance 

supports an aggregate $142,500 civil penalty for Respondent's 19 regulatory violations. Accordingly, the 

ALJ' s civil penalty assessment does not accord with sanction guidance and should be reversed. 

1. The AU Erred by Crediting Sky West's Corrective Action as a Mitigating Factor. 

A civil penalty may only be reduced on the basis of corrective action where there is "sufficient, 

specific evidence of swift or comprehensive corrective action." In the Matter of Mauna Kea Helicopters, 

FAA Order No. 1997-16 at !0-11 n.l5 (May 23, 1997) (citing In the Matter of Delta AirLines, Inc., FAA 

Order No. 1992-5 at 7 (January 15, 1992)). Because corrective action is an affirmative defense, Respondent 

bears the burden of proof. See 14 C.F.R. § 13.224(a); In the Matter of Seven's Paint & Wallpaper Co., 

FAA Order No. 2001-6 (May 15, 2001). In consideration of this burden, the Administrator has held that a 

reduction in civil penalty is not warranted when a Respondent fails to introduce any reliable evidence of 

the corrective action that he claims. See id. (ALJ erred in finding that corrective action was a mitigating 

factor when Respondent failed to introduce any documentary evidence regarding the training it cited as a 

corrective action); In the Matter of Mauna Kea Helicopters, FAA Order No. 1997-16 at !0-11 n.15 

13 
(May 23, 1997) (testimony that Respondent sent one of its employees to an engine school did not constitute 

sufficient evidence when Respondent provided no documentary evidence to corroborate this claim). 

Here, Respondent claims that it has taken corrective action by implementing five measures to 

prevent reoccurrence of similar violations, including establishing an electronic aircraft maintenance 

blocking program, installing an enhanced phone system, adding additional Maintenance Controllers, and 

creating new positions of Data Administrator and Supervisor of Internal Compliance. The ALJ explicitly 

credited Respondent with taking these corrective actions in his Decision and assessed a civil penalty 

accordingly. (Decision at 14-15). However, the only evidence in the record concerning Respondent's 

alleged corrective action is limited to Respondent's own, unsworn, self-serving statements. These 

statements, absent more, are insufficient to meet its burden. Cf. In the Matter of Giuffrida, FAA Order 

No. 1992-72 at 2 (December 21, 1992) (unsworn letter from Respondent was insufficient to prove his 

affirmative defense of financial hardship). Respondent has not provided any documentary evidence to 

support its claims. Cf. In the Matter of Mauna Kea Helicopters, FAA Order No. 1997-16 at 10-11 n.15 

(May 23, 1997) (testimony insufficient absent documentary evidence). 

Moreover, Respondent has provided no evidence as to how, if at all, these actions exceed the 

minimum regulatory or statutory requirements. See FAA Order 2150.3b, Ch.7, para. 4 ("The FAA 

considers corrective action a mitigating factor in detennining sanction provided the corrective action 

exceeds the minimum regulatory or statutory requirements."); In the Matter of Seven's Paint & Wallpaper 

Co., FAA Order No. 2001-6 (May 15, 2001) (mitigation not warranted when Respondent failed to 

introduce any evidence regarding whether the training videotapes met or exceeded the regulatory 

requirements for training). Here, Respondent fails to explain how additional Maintenance Controllers and 

the creation of a new Data Administrator and Supervisor of Internal Compliance position exceeds 

minimum requirements; the F ARs already require Part 121 carriers to have sufficient qualified personnel to 

ensure an adequate level of safety. Moreover, the stated purpose of the "enhanced phone system" is to 

rectify the fact that "flight crews were not getting timely communication of maintenance information." 

(See Respondent's Response to Interrogatory No. 7). The upgrade of an insufficient communication system 

14 
is not grounds for mitigation. Cf. In the Matter of Pinnacle Airlines. Inc., FAA Order No. 2012-2 (May 

22, 2012) (implementation of a new computer system to replace old, antiquated, and insufficient system 

did not warrant mitigation). Accordingly, Respondent has not met its burden of proof, and the ALJ erred by 

crediting Respondent's corrective action as a mitigating factor in assessing the $11,998 civil penalty. 

2. Agency Sanction Guidance, Precedent, and Policy Support a $142.500 Civil Penalty. 

To guide FAA's assessment of civil penalties, the FAA has promulgated agency sanction guidance 

which can be found in FAA Order 2150.38, Chapter 7 and Appendix B. 12 Appendix B of this guidance 

contains a "Table of Sanctions," which provides civil penalty tables that establish a specific penalty range 

for a specific type of violation, i.e., each category of violation will specify a minimum, moderate, or 

maximum range penalty. Corresponding numerical values for each of these ranges will depend on the size 

and operational status of the particular violator. 

Application of this sanction guidance to Respondent's 19 regulatory violations supports the 

assessment of a $142,500 civil penalty in this case. Under agency sanction guidance, Respondent is 

classified as a Group I air carrier, large business concern, because it operates under Part 121 and has annual 

operating revenue of$100,000,000 or more. See FAA Order 2150.3B, App'x Bat B-3; (Requests for 

Admission Nos. I & 2). Addressing Respondent's two violations of§ 119.5(g), for operating as an air 

carrier on October 19 & 20, 2010 while failing to comply with the MEL as required by its OpSpecs, 

Sanction Guidance Tables provide that "Operation contrary to ops specs- technical noncompliance" 

corresponds to a "Minimum" range penalty. See FAA Order 2150.3B, App'x B, at B-2, Figure B-1-c-2. 

For a Group I air carrier such as Respondent, the minimum range corresponds to a penalty range of $2,000-

$9,999 per violation. Sanction guidance provides that, when assessing a civil penalty within a sanction 

range, FAA enforcement personnel begin with an amount in the middle of the range and increase that 

amount toward the higher end of the range for aggravating factors. See FAA Order 2150.3B at 7-9. Here, a 

civil penalty of $7,500- above the midpoint of $5,999.50, but well within the minimum range- is 

12 Agency sanction guidance in FAA Order 2150.38 is publicly available at: 

http://www.faa.gov/regulations _policies/orders_ notices/index.cfi:n/go/document.information/documentid/1 72 13 

15 
warranted due to Respondent's status as a Part 121 certificate holder and lengthy experience as an air 

carrier, both of which are aggravating factors." Per agency sanction guidance, "[w]hether the certificate 

holder was engaged in student, private, commercial, or airline activity bears on the severity of the sanction" 

and "[a ]ir carriers are held to the highest standard of care." See id. at 7-7. The ALJ's stated disregard of 

this factor, therefore, is not in accordance with sanction guidance. Accordingly, a $15,000 violation (i.e., 

$7,500 for each violation) is appropriate for Respondents two violations of§ 119.5(g). 

Also, as discussed above, 49 U.S. C. § 4630l(a)(2) provides that a civil penalty may be assessed for 

each of Respondent's 17 operations ofN822SK in an unairworthy condition. FAA Order 2150.38 

provides guidance for making sanction determinations in cases involving multiple acts or multiple 

violations. Id. at 7-10 (citing 49 U.S.C. § 46301(a)(2)). This guidance provides that where an initial act 

(here, failure to complete the MEL requirements) results in multiple violations, including multiple flights, 

each flight constitutes a separate offense. !d. at 7-10. 14 See also United States v. Emerson, 107 F.3d 77,79 

(1st Cir. 1997) (penalty assessed per flight was not excessive); In the Matter of: Rushmore Helicopters, 

Inc., FAA Order No. 2012-8 (Oct. II, 2012) (civil penalty assessed per flight because it was unairworthy 

on ten occasions). However, in order to avoid the imposition of a disproportionately harsh civil penalty 

when a violation involves multiple flights, sanction guidance provides a maximum civil penalty amount 

that ordinarily - absent aggravating circumstances -may be assessed for inadvertent, isolated violations 

such as this one. See FAA Order 2150.38, Figure 7-3, at 7-13. This maximum amount for a Group I air 

carrier such as Respondent is $400,000. !d. 

The civil penalty assessed here for Respondent's 17 unairworthy flights is well below this 

maximum amount. Specifically, Appendix B, Figure B-1-L-1, "Technical non-conformity to TC; no likely 

effect on safe operation" recommends a "Minimum" range penalty for this violation. As explained above, 

13 Respondent has held Air Carrier Certificate No. SWIAOllA since 1989. 

14 This guidance comports with the deterrent effect embodied in FAA's civil penalty authority, see 133 Cong. Rec. 

Hll696, as safety is jeopardized each time an unairworthy aircraft is operated. A civil penalty should be substantial 

enough to deter Respondent and similarly situated entities from committing similar violations in the future. See In the 

Matter ofFolsom's Air Service. Inc., FAA Order No. 2008·11 (Nov.6, 2008). 

16 
this corresponds to a penalty range of $2,000-$9,999 per violation for a Group I air carrier such as 

Respondent. Given Respondent's status as a Part 121 certificate holder and lengthy experience as an air 

carrier, a $7,500 civil penalty amount- well-within this "minimum" range- is appropriate for each of 

Respondent's operations of an unairworthy aircraft. Accordingly, a $127,500 civil penalty is appropriate 

for Respondent's 17 violations of §121.605, §121.153(a)(2), and §119.5(1).15 

For these reasons, a $142,500 aggregate civil penalty is appropriate for Respondent's 19 regulatory 

violations (i.e.,$15,000 + $127,500). This sanction amount is consistent and in accordance with agency 

sanction guidance in FAA Order 2150.3B and 49 U.S.C. § 46301(a)(2). In contrast, the ALl's assessment 

of an $11 ,998 civil penalty is not. When an ALJ assesses a civil penalty that is not consistent with agency 

sanction policy, the Administrator on appeal may reverse the ALJ. In the Matter of Ventura Air Servs., 

Inc., FAA Order No. 2012-12 (Nov. I, 2012)(citing Folsom's Air Service, FAA Order 2008-11 at 14 

(Nov. 6, 2008)). Indeed, the Administrator has both the authority and duty to impose the agency's policy 

on appeal. In the Matter ofWarbelow's Air Ventures Inc., FAA Order No. 2000-3 (Feb. 2, 2000). Here, 

the ALJ's imposition of an $11,998 civil penalty for Respondent's 19 regulatory violations is contrary to 

agency sanction guidance and policy. Accordingly, it should be reversed. 

VI. CONCLUSION 

The ALJ erred by failing to assess a civil penalty for each of Respondent's 17 operations of 

N822SK contrary to its OpSpecs and in an unairworthy condition. Thus, the ALI's assessment of an 

$11,998 civil penalty for Respondent's 19 regulatory violations is contrary to law, precedent, and policy, 

and should be reversed. Agency sanction guidance supports the imposition of an aggregate $142,500 civil 

penalty for Respondent's violations of14 C.F.R. §§ 119.5(g), 119.5(1), 121.605, and 121.153(a)(2). 

Furthermore, the ALJ erred by failing to find that Respondent violated 14 C.F.R. § 121.628(a)(5). 

15 Although the ALJ erred by failing to find Respondent violated §121.628(a)(5), this finding of violation is not necessary 

to support the imposition of a $142,500 civil penalty in this case. Respondent's violation of §121.628(a)(5) is an additional 

operational violation and is thereby included within the civil penalty calculation for Respondent's §121.605, 

§121.153(a)(2), and §119.5(1) violations. 

17 
Wherefore, Complainant respectfully requests that the FAA decisionmaker reverse the ALl's 

reduction of the $142,500 civil penalty proposed by Complainant and reverse the ALJ's finding that 

Respondent did not violate section 121.628(a)(5) as alleged in the Complaint. 

Dated: July 16,2015 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel for Enforcement 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Telephone: (202) 267-5964 

Facsimile: (202) 267-5106 

18 
CERTIFICATE OF SERVICE 

I hereby certifY that on this date I have sent the foregoing Complainant's Appeal Brief by facsimile 

and by U.S. certified mail, return receipt requested, postage prepaid, to: 

Todd Emerson, Esq. 

Sky West Airlines, Inc. 

444 South River Road 

St. George, UT 84 790 

Fax: 435-634-3505 

In addition, I certifY that I have on this date personally delivered the original and one copy ofthe 

foregoing document to: 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Federal Aviation Administration 

600 Independence Avenue SW 

Washington, DC 20591 

Dated: July 16, 2015 

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