FEDERAL AVIATION ADMINISTRATION U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

Complainant, DocketNo. 2011NM06005 FDMS No. FAA 2012-0777 v. SKYWEST AIRLINES Respondent. ) ) ) ) ) ) ) ) ) ) )
COMPLAINANT'S APPEAL BRIEF 

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# JUL 16 2015 HEARING DOCKET

Pursuant to section 13.233(d) ofthe Rules ofpractice, 14 C.F.R. 

### § 13.233(d), Complainant files this briefin support ofits appeal oftbe Initial Decision issued by Administrative Law Judge Richard C. Goodwin (ALJ) onApril22, 2015, inthe above-captionedmatter. I. STATEMENT OF THE CASE OnJune 21, 2012, Complainant issued a Final Notice ofProposed Civil Penalty alleging tbat SkyWestAirlines (SkyWest) released, dispatched, and operated a Bombardier CL-600-2024 civil aircraft, N822SK, on 17 flights whentbe aircraft didnot conformto all applicable conditions and limitations contained inthe 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 ofthe MEL; 14 C.F.R. 

### § 121.605, for dispatchingN822SK whenthe 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. Inresponse, Respondentrequested a hearing and Complainant filed a Complaint containing above-listed allegations.Priorto the hearing, Complainant filed a Motion for Decision. On review ofthis motion, and because both parties agreed that no hearing was necessary as there was no genuine dispute as to any material fact, onFebruary 4, 2014, the ALJ issued anOrder Staying Proceedings and ordering written submissions by the parties. Inresponse to this Order, on March 21, 2014, Respondent filed a Rebuttal to Complainant'sMotionfor Decisionand a cross Motion for Decision. In tum, Complainant filed a Rebuttal
onMarch 27, 2014, and Respondent filed a subsequentRebuttal 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), butthat Complainantfailed to prove by apreponderance ofthe evidencethatRespondent 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, 20I0, a flight crew reported a "PACKFAULT" 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 SkyWest 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 ofthe pack discharge pressure sensor by interrogatingthe MDC [Maintenance DataComputer]" once per flight day and make a corresponding entry inthe maintenance log ofthe aircraft indicating completion ofthis required action. (Compl.

**~** 8;

**Answer~** 8; Ex. A to Respondent's Motion). A "flight day" is defined in SkyWest SP7555, Definitions andAcronyms, as a 24-hourperiod from 3:00AMto 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 ofthe intervening flight days ofOctober 19, 20I0, and October 20, 2010 (Respondent's Motion at 3), despite the fact that it 2operatedN822SK in commercial service on these days. (Ex. 3to Complainant's Motion at 5). According to the Aircraft Flight Log, Respondent operatedN822SK on nine flights onOctober 19,2010, and eight flights on October 20, 2010. (Ex. 4 to Complainant's Motion). Therefore, Respondent operatedN822SK
on a total of 17 flights between October 19,2010 and October 20,2010, when the daily verification ofthe pack discharge pressure sensorrequired by MEL 27-51-4a was not completed. Onthis evidence, the ALJ issued an Initial Decision finding thatthe preponderance ofthe 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 sectionprovides: "Noperson may take offan airplane with inoperable instruments or equipment installed unless
... The airplane is operated under all applicable conditions and limitations contained inthe Minimum Equipment List." In explaininghis failure to find a violation of§ 121.628(a)(5), the ALJ stated thatthere "wasno evidencethat any instrument orequipment
was inoperable onN822SK" on the relevant dates. (Decision at 10). The ALl also assessed an $11,998 civil penalty against Respondent, comprised ofa $5,999 civil penalty for each ofthe two violations of 14 C.F.R. 

### § 119.5(g)

- i.e., for Respondent's operation as an air carrier in violation ofits OpSpecs, which allowed Respondentto defer maintenance using, and complying with all applicable conditions and limitations of, an approved MEL. (Decision at 12, 15). Infurther explaining this sanction assessment, the ALJ stated that he assessed a penalty for each flight day

- October 19th and 201h- onwhich Respondent failed to verify the operation ofthe pack discharge pressure
sensor and documentthis check in accordance with MEL 27-51-4a. See id. However, despite finding violations ofsections 119.5(1), 121.605, and 121.153(a)(2), the ALJ declined to assess a civil penalty for Respondent's operation ofthe 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 tothe "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 whenthe seventeen (17) cycles took place, i.e., whetherthe flights all occurred on 18, 19, 20 and/or 21, 2010 or some other combination ofthose dates" (Initial Decision at 9), despite the attachment ofthe 3AircraftFlight Logs indicatingthat Respondent operatedN822SK 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. WhethertheALJ Erredby Failing to Findthat RespondentTook OffN822SKwith Inoperable Equipment in Violation of 14 C.F.R. § 121.628(a)(5). B. Whetherthe ALI's Conclusion thatthe 17 Separate Occasions on Which Respondent OperatedN822SK in an Unairworthy Condition Dueto the Failure to Comply with the Requirements ofMEL 27-51-4awere "Residual Violations" is Contrary to Law, Precedent, and Policy. C. Whether $142.500 is anAppropriate Civil Penalty for Respondent's 19 Separate Violations ofthe Federal Aviation Regulations. IV. STANDARD OF REVIEW Under the Rules ofPractice, the Administrator considers on appeal whetherthe ALI's findings of fact are supported by a preponderance ofreliable, probative, and substantial evidence. 14 C.F.R. § 13.233(b)(I). The Administrator also considers whetherthe 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 whetherthe ALJ committed prejudicial errors during the hearing orproceedings. 14 C.F.R. § 13.233(b)(3). Complainant bears the burden ofprovingthe appropriateness ofthe civil penalty, but Respondentbears the burden ofproofofan affirmative defense, such as corrective action. See 14 C.F.R. § 13.224(a); In the Matter ofSeven's Paint & Wallpaper Co., FAA OrderNo. 2001-6 (May 15, 2001). V. ARGUMENT A. Respondent Took OffN822SKwithInoperable Equipment on 17 Flights Without Complying with the Requirements ofMEL 27-51-4a, in Violation of 14 C.F.R. § 121.628(a)(5). The ALJ erred by concludingthatRespondent did not violate 14 C.F.R. § 121.628(a)(5). The plain text of 14 C.F.R. 

### § 121.628(a)(5) provides, inpertinent 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 EquipmentList exists for that airplane. 

## * * *
4(5) The airplane is operated under all applicable conditions and limitations contained in the Minimum Equipment List and the operations specifications authorizing use ofthe 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 EquipmentRequirements for General Aviation Operations Under FARPart 91 (June 28, 1991). Here, the ALJ found that on October 18, 2010, a flight crew reported a "PACKFAULT" status message as a discrepancy in the maintenance log ofN822SK (Compl. 

### 'If 6; Answer 'I[ 6), and thatthis discrepancy, which indicated a mechanical irregularity withthe 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 showingthat 

### itverified the operation ofthe pack discharge pressure sensor in accordance withthe conditions and limitations contained in the MEL on the flight days ofOctober 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 makingthese findings, and despite Respondent's admission that it operated N822SKwithout completingthe daily verification ofthe pressure sensorrequired by MEL 27-51-4a on the flight days ofOctober 19 and 20, 2010, the ALJ declined to find thatRespondent 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 completethe once-daily verification required by MEL 27-51- 4a onthe flight days ofOctober 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 thatRespondent deferredthe "Packfault status msg" using MEL 21-51-4a, butthe log does not contain any entries referencing MEL 21-51- 4a on the dates ofOctober 19" and 20". Respondent did, however, document the completion ofthis check by an entry dated "10/21/10."(Ex. I to Complainant's Motion). Itis well establishedthat the FAA may sustain its burden ofproving that required maintenance has not been performed by relying on the absence ofwritten maintenance entries. See In the Matter ofDelaware Skyways, LLC. FAA OrderNo. 2005-6 (March 18, 2005) (FAA inspectors may rely onmaintenance records to detennine whether maintenance has been done properly); In the Matter ofDelaware Skyways, LLC. FAA Order No. 2005-5 (March 18, 2005) (in the absence ofany countervailing evidence, maintenance records must bedeemedto be accurate). Thus, Respondent's failure to comply with the requirements ofthe MEL on these flight days is not in dispute. 5fundamental misunderstanding ofthe circumstances in which an air carrier would use, and the purpose for,
an approved MEL. Byway ofbackground, the FAAhas 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. Id. The FAA also approves for particular types ofaircraft anMEL, whichpermits the operation ofan aircraft with inoperable equipment providedthatthe operator campiies with specific conditions and limitations. Inthe Matter ofDelta Air Lines. Inc., FAA Order No. 97-21 (May 28, 1997). Accordingly, the express purpose ofan MEL is to permit deferral ofrepairs to inoperable equipmentusing FAA-approved procedures? This is because inoperable equipment renders an aircraft out ofconformance with its type certificate, id., and the use ofan approved MEL procedure allows the operation ofan otherwise unairworthy aircraft so long as the aircraft is operated under all applicable conditions and limitations set forth inthe MEL. See § 121.628(a)(2); GoJet Airlines, LLC v. FAA, 743 F.3d 1168, 1171 (8th Cir. 2014)3 Itis therefore axiomatic that the purpose ofusing anMEL 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 onN822SK," (Decision at 9), is not dispositive ofinoperability; whether ornotthe air conditioning appearedto be functioning is notthe 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 extentthat it [did] not accomplish its intended purpose and/or is [was]
2 SeeMinimum EquipmentList (MEL) Requirements, 56 FR 12306-01 (Mar. 22, 1991) ("The concept ofthe Minimum Equipment List (MEL) was developed when it was recognizedthat a flight or series offlights mightbe continued with certain inoperable instruments and equipment under appropriate circumstances."). 3 See also Inthe Matter ofHorizon Air Industries, Inc., FAA OrderNo. 95-11 at 5 (May 10, 1995) (policy purpose of "permitting a short deferral ofmaintenance under the MEL" is to "strike[s] abalance betweenhaving all equipment in good working order and the air carrier's operational needs").
4 Respondent suggests in its Motionthatthe only issuehere 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 ofthat system was not functioning normally or accomplishing its intendedpurpose. Thus, it is inoperable withinthe meaning of§ 121.628(a)(5), regardless ofwhetherthe aircraft cabin remained an appropriate temperature despite this discrepancy. 6not consistently functioning nonnally withinits approved operating limit(s) ortolerance(s)." Here, Respondent's receipt ofthe "PACK FAULT" status message and deferral ofthis discrepancy using MEL 27-51-4a evidences malfunctioning equipment. 5 Indeed, Respondent admits thatthis errormessage signifies a mechanical irregularity withthis system. (See Compl. 

## 16, Answer 

## 16). An "irregularity" logically evidences lack ofnonnal function, despite the superficial impressionthat the air conditioning system appeared to be functional. Moreover, the ALJ's reliance on the fact that a later investigationby 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. Inthe 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 onthe 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 Respondentpurports that the sensor was "functioningnormally," both the ALJ and Respondent agreedthatthe sensor "was not communicatingproperly withthe aircraft computer." (See Respondent's Motion at 2; Decision at 12). 6 This fmding shows, atthe very least, that a sensor, which
was not communicating properly, was inherently malfunctioning to the extentthat it did not accomplish its intended purpose. Given the admitted mechanical irregularity withthis system, Respondentprovides no support for the proposition that a functional sensor indicates that the "PACK FAULT" status message was not indicative ofa discrepancy. Accordingly, because Respondent operatedN822SK on 17 flights with inoperable equipmentwithout verifYing the operation ofthe pack discharge pressure sensor once perflight day on the flight days ofOctober 19,2010 and October 20,2010, as required by MEL 27-51-4a (Ex. 1 & 2

5 The conclusion that at least some portion ofthe Air Conditioning System was inoperable is supported by the plain text of MEL 27-51-4a itself; the "Placarding" sectionprovidesthat, when complyingwithMEL 27-51-4a, "AnInoperative Placardwillbeplaced 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). 7to Complainant's Motion; Respondent's Motion at 3), Respondent did not operate N822SK under all applicable conditions and limitations contained inthe MEL. Thus, Respondent violated§ 121.628(a)(5). B. The 17 Flights During Which Respondent Released, Dispatched, and OperatedN822SK Without Complyingwiththe Requirements ofthe MEL in an Unairworthy State are IndependentRegulatory Violations and, Thus, are Not Residual to Respondent's Violation of§ 119.5(g). The ALJ correctly concluded that Respondent's operation ofN822SKwithout complying withthe requirements ofMEL 27-51-4a supported a finding ofviolation 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 ofthe reliable, probative, and substantial evidence7 However, in assessing a sanction for these violations, the ALJ assessed a penalty only for Respondent's two violations ofsection 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 thatthe seventeen flights during whichrespondent dispatched, took off, and operatedN822SK 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 Failingto Findthat the 17 Flights During Which Respondent OperatedN822SK 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 underthis subsection for each day the violation
... continues or, ifapplicable, for each flight involvingthe violation." (emphasis added). The plain language ofthis statute establishes thatthe
7 Respondent operatedN822SKwith an open maintenance discrepancy without performing the requirements ofMEL 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 didnot conformto its type design. See Inthe Matter ofHorizonAir Indus., Inc., FAA OrderNo. 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 ifit was in acondition for safe operation."); In the Matter ofUS Air. Inc., FAA OrderNo. 1996-25 at 12-13 (Aug. 12, 1996) (ifa required inspectionhas notbeen performed, the aircraft cannot be considered "airworthy"): In the Matter ofGeneral Aviation. Inc., FAA OrderNo. 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 operatingN822SK under Part 121 in violation ofParagraph D095 ofits OpSpecs, which required Respondent to defer maintenance using applicable conditions and limitations ofthe MEL. (See Compl.111f2-5;

**Answer~~** 2-5). 8FAAmay construe each flight as a separate violation for purposes ofassessing a civil penalty. See Mills Music, Inc. v. Snyder, 469 U.S. !53, 164, (1985) ("In construing a federal statute it is appropriateto
assume thatthe ordinary meaning ofthe language that Congress employed accurately expresses the legislative purpose."). The legislative history ofthis statutory provision makes the FAA's authority to
assess penalties on aper flight basis, as appropriate, even clearer. Priorto 1987, 49 U.S.C. 

### § 4630I(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 ExpansionAct, Congress granted additional authority to the FAA to assess a civil penalty for "each flight" involving a violation. Pub. L. No. 100-223, I0I Stat. 1519 (Dec. 30, 1987). The Conference Reportrelatingto the passage ofthis Act explainedthatthis "civil penalty increase provision[] clarifies the Federal Aviation Act by mandatingthat penalties be administered for violations which occur on each flight." 133 Cong. Rec. H11696, 1987 WL 953488 (statement ofRep. 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 atthe end ofthe 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 ofthe carriers that we do not want them flying aircraftthat do not meetthe minimum standards ofsafety. Id. The congressional intent behind this civil penalty provision was to send a "strong and clearmessage to the airline industry that they must put safety first." ld. Accordingly, the Airport and Airway Safety and Capacity ExpansionAct increasedthe monetary value ofFAA's civil penalty assessment authority withthe express purpose ofgenerating "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 ofthis 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.. Inthe Matter ofConquest Helicopters, Inc., FAA OrderNo. 94-20 (June 21, 1994) ("Whilethe lawjudge was correct in finding thatRespondent's round-trip flight withtwo takeoffs and landings consisted oftwo flights, he erred in concluding thatthe two flights constituted only one violation. Once the lawjudge found two flights, he 9should have found that each flight was a separate violation."); In the Matter ofRushmore Helicopters, Inc., FAA Order (Oct. 11, 2012) (assessing a civil penalty for eachviolation ofsection 91.7(a) when Respondentoperated an unairworthy aircraft on ten flights). Here, Respondent operatedN822SK on 1 7 separate flights overthe course oftwo flight days

- October 19 and 20,2010- on each ofwhich Respondent failed to comply withthe requirements ofthe MEL. (See Compl. -,[-,[ 2-5; Answer-,[-,[ 2-5; Request for Admission No. 9) 8 On each ofthese 17 flights N822SK was unairworthy, see Inthe Matter ofGeneral Aviation, Inc., FAA OrderNo. 1998-18 at 13 (October 9, 1998) (an aircraft with unresolvedmechanical discrepancies is unairworthy), and on each of these 17 flights safety wasjeopardized. Bythe plaintext of49 U.S.C. § 46301(a)(2), each flight constitutes

a separate violation and warrants a separate imposition ofa civilpenalty. See 133 Cong. Rec. H11696. By failing to asses penalties for each ofthe 17 flights during whichN822SK was unairworthy, the ALJ ignoredthe safety risk inherent in each flight. The regulatory language ofthese inherently operational violations provides further support for the conclusion thateach flight is a basis for a separate penalty. Bythe plaintext of§121.605, each ofthe 17 times Respondent "dispatch[ ed] orrelease[d]" N822SK for a flight in an unairworthy state is a separate violation;just as each ofthe 17 times Respondent "operated[d] an aircraft" not in an airworthy condition is

a separate violation of§ 121.153(a)(2); and each ofthe 17 times Respondent "operate[ d) an aircraft" in violation ofits operations specifications constitutes a separate violation of§ 119.5(1). Thus, to the extent that the ALJ failed to find that each ofthe I7 flights constituted an independent violation for purposes of assessing a civil penalty, this finding is contrary to precedent and to the plaintext ofF AA's regulations and civil penalty authority in49 U.S.C. § 46301(a)(2). Accordingly, the ALJ's finding is in error, and a

8 The ALJ's inexplicable statementthat "[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 ofthose dates" is incorrect. (Decision at 9). The AircraftFlight Logs attached as Exhibit4to Complainant's Motion demonstrate thatRespondent operatedN822SK on 9 flights on October 19, 2010 and 8fights on October 20, 2010. Respondent admits thatN822SK was flown on 17 flight cycles between October 19,2010 and the completion ofthe MEL 27-51-4a. (Response to Complainant's Initial Discovery Request, Request for Admission No. 9). This evidence is sufficient for aprimafacie case, and the ALJ is not required to "speculate on which ofthe four days one or more ofthose flights tookplace." (Decision at 9). 10separate sanction should be assessed for each ofRespondent's 17 flights in violation ofsections 119.5(1), 121.605, and 121.153(a)(2). 9 2. The ALJ's Characterization ofthe 17 Flights as "Residual" is Not Supported by Case Law. As previously explainedby the Administrator: "Aresidual violationis one that flows solely from a respondent's violation ofanother, independentregulation." Inthe Matter ofRushmore Helicopters, Inc., FAA OrderNo. 2012-8, (Oct. 11, 2012). 10 A residual violation, therefore, is "notbased on any independent event" and does notrequire additional findings. In the Matter ofGoJet Airlines, LLC, FAA OrderNo. 2012-5 (May 22, 2012). As noted by Respondent in its Motion for Decision, the ultimate questionis whether each cited regulatory violation "require[s] proofofa fact that the other did not." Inthe Matter ofFrostadAtelier, FAA Order. No. 2013-5 (Sept. 5, 2013). Under this precedent, and contrary to the AU's finding, Respondent's violation ofsections 119.5(1), 121.605, and 121.153(a)(2)- which are each premised upon a finding that Respondent operated N822SKin 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 plaintext ofthe regulations; as worded, a violation of§119.5(g) does not inherently require an element ofaircraft operation. To wit, interpreting § 119.5(g), which prohibits a person from operatingas a direct air carrier in violation ofappropriate operations specifications, as encompassing operational violations (i.e., flights) wouldrenderredundant

9 Given that these provisions all proscribed the unairworthy operation ofan aircraft (or operation ofan aircraft in violation ofOpSpecs) Complainant is not seeking separate civil penalties for each ofthe three cited regulatory violations.
10 As such, the "residual" doctrine is used almost always, ifnot exclusively, to find aviolation ofsection 91.13 (careless and reckless operation) after an operational violationhad been established. See

### ilL Inthe Matter ofGo jet Airlines. LLC, FAA OrderNo. 2012-5 (May 22, 2012). ("Once tbe agency shows that a respondent has operated an unairworthy aircraft, then careless or reckless operation ofan aircraft, aviolation ofSection 91.13(a), follows as aresidual violation). An violation ofsection 91.13 is not alleged in this case. 11§119.5(1), which expressly prohibits operation of an aircraft in violation ofappropriate operations specifications.[[ By way ofillustration, here, Respondent violated §119.5(g) by operating as a direct air carrier on the dates ofOctober 19 & 20, 2010 without complying withthe requirements ofthe MEL, as its OpSpecs required itto 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 butfailed to comply withthe conditions and limitations ofMEL 27-51-4a, contrary to the requirements ofits OpSpecs. Inherently, this violation of§119.5(g) does notrequire a finding that Respondent operated any particular aircraft. In contrast, the more specific provisions ofsections 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 operatingan 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 operatedN822SK 

### in unairworthy condition. Accordingly, a finding ofviolation ofsections 121.605, 121.153(a)(2), and 119.5(1) requires a distinct factual event- i.e., the operation ofN822SK. Thus, althoughthe ALJ determined thatthere 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, thatRespondent 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 of49 U.S.C. § 4630l(a)(2) dictates that each flight is an independent offense distinct from the requirementto adequately perform maintenance, and thus, requires the imposition ofa civil penalty. See Inthe Matter ofUSAir. Inc., FAA OrderNo. 96-25 (Aug. 12, 1996) (finding the ALJ erred by failing

11 A standard principle ofconstruction is to construe statutes or regulations in the context ofthe entire statutory scheme and avoid rendering statutory provisions ambiguous, extraneous, or redundant. See. e.g.. Matter ofMerchants Grain. Inc. By & Through Mahem, 93 F.3d 1347, 1354 (7th Cir. 1996). 12to find that "USAir operated anunairworthy aircraft, a violation of§121.153(a)(2), oneight 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 independentfrom its failure to properly defermaintenance under the MEL. Therefore, the ALJ erredby finding that Respondent's unairworthy operation ofN822SK on 17 flights were "residual" to Respondent's underlying failure to complete the requiredMEL procedure. A civil penalty for each ofRespondent's 17 unairworthy flights should be assessed against Respondentjust 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 SkyWest's 19 Regulatory Violations. Although the AUdetermined 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). Forthe 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 shouldbe reversed. 1. The AUErred by Crediting SkyWest's Corrective Action as a Mitigating Factor. A civil penalty may only be reduced onthe basis ofcorrective action where there is "sufficient, specific evidence ofswift or comprehensive corrective action." In the Matter ofMauna KeaHelicopters, FAA OrderNo. 1997-16 at !0-11 n.l5 (May 23, 1997) (citing In the Matter ofDeltaAirLines, Inc., FAA OrderNo. 1992-5 at 7 (January 15, 1992)). Because corrective action is an affirmative defense, Respondent bears the burden ofproof. See 14 C.F.R. § 13.224(a); In the Matter ofSeven's Paint & Wallpaper Co., FAA OrderNo. 2001-6 (May 15, 2001). In consideration ofthis burden, the Administrator has heldthat 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); Inthe Matter ofMauna KeaHelicopters, FAA Order No. 1997-16 at !0-11 n.15

13(May 23, 1997) (testimony that Respondent sent one ofits employees to an engine school did not constitute sufficient evidence when Respondentprovided no documentary evidence to corroborate this claim). Here, Respondent claims that it has taken corrective action by implementing five measures to prevent reoccurrence ofsimilar violations, including establishing an electronic aircraft maintenance blocking program, installing an enhanced phone system, adding additional Maintenance Controllers, and creating new positions of DataAdministrator and Supervisor ofInternal 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 limitedto Respondent's own, unsworn, self-serving statements. These statements, absent more, are insufficientto meet its burden. Cf. In the Matter ofGiuffrida, FAA Order No. 1992-72 at 2 (December 21, 1992) (unsworn letter from Respondent was insufficient to prove his affirmative defense offinancial hardship). Respondent has notprovided any documentary evidence to support its claims. Cf. In the Matter ofMauna KeaHelicopters, FAA OrderNo. 1997-16 at 10-11 n.15 (May 23, 1997) (testimony insufficient absent documentary evidence). Moreover, Respondent has provided no evidence as to how, ifat all, these actions exceed the minimum regulatory or statutory requirements. SeeFAA 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 ofSeven's Paint & Wallpaper Co., FAA OrderNo. 2001-6 (May 15, 2001) (mitigation not warranted when Respondent failed to introduce any evidence regarding whetherthe training videotapes met or exceededthe regulatory requirements for training). Here, Respondent fails to explain how additional Maintenance Controllers and the creation ofa new Data Administrator and Supervisor ofInternal Compliance position exceeds minimum requirements; the FARs already require Part 121 carriers to have sufficient qualified personnel to
ensure an adequate level ofsafety. Moreover, the stated purpose ofthe "enhancedphone system" is to rectify the fact that "flight crews were not getting timely communication ofmaintenance information." (See Respondent's Response to Interrogatory No. 7). The upgrade ofan insufficient communication system 14is not grounds for mitigation. Cf. Inthe Matter ofPinnacle Airlines. Inc., FAA OrderNo. 2012-2 (May 22, 2012) (implementation ofa new computer system to replace old, antiquated, and insufficient system did not warrant mitigation). Accordingly, Respondent has not met its burden ofproof, and the ALJ erred by crediting Respondent's corrective action as a mitigating factor in assessing the $11,998 civil penalty. 2. Agency SanctionGuidance, Precedent, and Policy Support a $142.500 Civil Penalty. To guide FAA's assessment ofcivil penalties, the FAA has promulgated agency sanction guidance which can be found in FAA Order 2150.38, Chapter 7 and AppendixB. 12 Appendix B ofthis guidance contains a "Table ofSanctions," which provides civil penalty tables that establish a specific penalty range for a specifictype ofviolation, 

### i.e., each category ofviolation will specify a minimum, moderate, or maximum range penalty. Corresponding numerical values for each oftheseranges will depend onthe size and operational status ofthe particularviolator. Application ofthis sanction guidance to Respondent's 19 regulatory violations supports the assessment ofa $142,500 civil penalty inthis case. Under agency sanction guidance, Respondent is classified as a Group I air carrier, large business concern, because it operates underPart 121 and has annual operating revenue of$100,000,000 ormore. See FAA Order 2150.3B, App'x BatB-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 withthe MEL as requiredby 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'xB, 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 ofthe range and increase that amount toward the higher end ofthe 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 withinthe minimum range- is

12 Agency sanction guidance inFAA Order2150.38 is publicly available at: http://www.faa.gov/regulations _policies/orders_ notices/index.cfi:n/go/document.information/documentid/172 13 15warranted due to Respondent's status as a Part 121 certificate holder and lengthy experience as an air carrier, both ofwhich are aggravating factors." Per agency sanction guidance, "[w]hether the certificate holder was engaged in student, private, commercial, or airline activity bears onthe severity ofthe sanction" and "[a ]ir carriers are heldto the highest standard ofcare." 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 ofRespondent's 17 operations ofN822SK in an unairworthy condition. FAA Order 2150.38 provides guidance for making sanction determinations in cases involving multiple acts ormultiple 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 OrderNo. 2012-8 (Oct. II, 2012) (civil penalty assessed per flight because it was unairworthy
on ten occasions). However, in order to avoidthe imposition ofa 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 belowthis 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 CertificateNo. 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 isjeopardized each time an unairworthy aircraft is operated. A civil penalty shouldbe substantial enough to deter Respondent and similarly situated entities from committing similar violations in the future. See In the Matter ofFolsom'sAir Service. Inc., FAA OrderNo. 2008·11 (Nov.6, 2008). 16this corresponds to a penalty range of$2,000-$9,999 per violation for a Group I air carrier such as Respondent. GivenRespondent's status as a Part 121 certificate holder and lengthy experience as an air carrier, a $7,500 civil penalty amount- well-withinthis "minimum" range- is appropriate for each of Respondent's operations ofan 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 Forthese 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 ofan $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 theALJ. In the Matter ofVenturaAir Servs., Inc., FAA OrderNo. 2012-12 (Nov. I, 2012)(citingFolsom's Air Service, FAA Order 2008-11 at 14 (Nov. 6, 2008)). Indeed, the Administratorhas boththe authority and duty to impose the agency's policy
on appeal. Inthe Matter ofWarbelow's Air Ventures Inc., FAA Order No. 2000-3 (Feb. 2, 2000). Here, the ALJ's imposition ofan $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 ofRespondent's 17 operations of N822SK contrary to its OpSpecs and in an unairworthy condition. Thus, the ALI's assessment ofan $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 ofan 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 ofviolation is not necessary to supportthe imposition ofa $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. 17Wherefore, Complainant respectfully requests thatthe FAA decisionmaker reverse the ALl's reduction ofthe $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 inthe Complaint.

Dated: July 16,2015 Respectfully submitted, PeterJ. Lynch Assistant ChiefCounsel for Enforcement

Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Ave., S.W. Washington, D.C. 20591 Telephone: (202) 267-5964 Facsimile: (202) 267-5106

18CERTIFICATE OF SERVICE I hereby certifY that on this date I have sentthe foregoing Complainant's Appeal Briefby facsimile and by U.S. certified mail, return receipt requested, postage prepaid, to: Todd Emerson, Esq. SkyWest Airlines, Inc. 444 South River Road St. George, UT 84790 Fax: 435-634-3505 In addition, I certifY that I have onthis date personally delivered the original and one copy ofthe foregoing documentto: Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 Federal Aviation Administration 600 Independence Avenue SW Washington, DC 20591

Dated: July 16, 2015

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