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::l r.\-\\ .v'lsj'j il./t 

T . , r r ^., 7. ' W^cMcx k i ^ E C1 1 y P ^' ^ 

Tutld C. nnicrson, rt8175 - • * * » *'V» £». f y ^ j^,_ , 

444 Soulli River Roiid .„, , j-.^ , ^_ ^^IM 

St. Gcoryc, Utah. 84790 -- ' - ' - ^'^ ''^ '^AR 2 D 2an 

IclcphoMC: (435)634-3530 HEARING DOCKP^ 

Kacsiinilc: (435)634-3505 •^»ti _ ••• 

ALlorncy IbrSkyWcsi Airlines, Inc. 

LiMTED STATES OF AMERICA 

DEPARTMENT OF I'R^VNSFORTATION 

OFRCE OF HEARINGS 

WASHINGTON, D.C. 

In ihe Matter of: MOTION FOR RELIEF TO FILE 

! RESPONDENT'S REBUTTAI. IN 

SUPPORT OF ITS AFFIRMATIVE 

DEFENSES 

Sky West Airlines, Inc. 

FAA DOrKh T CP009NM0()12 

DMS No. FAA-2()()9-0979 

FAA Case No. 2()09NM060()42 

Judge; Richard C. Goodwin 

Respondent SkyWcsi Airlines, Inc. respectfully moves this court lo grant [his Motion for 

Relicfto File Respondent's Rebuttal Fn Support of Its Affinnalive Delcnses, which is submitted 

heruwiih, 
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In its briellny order, the court provided for the Complaijuinl lo lile an opening :iiid 

rebuttal bricl", while respondent SkyWcst was limited to a reply briefonly. However, a.^ ihc? 

government twice admits, SkyWest ha<; the burden of proof for its afllrmalivc defense, Sff 

Complainants Brief page 12, line 8; Coniplainam's Rebutt:il Brief paye 11, line! 7. As such, 

SkyWesi requests relief to Ille a rebuttal brief in response lo the I'AA's arguments in opposition 

10 SkyWest's al'llmiative defen.ses. 

LU 

DATCD this > ^ day ot March. 2011. 

.^.: ^ 

Todd C. Emerson 

Attorney/or SkylVcst Airlines 
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CERTIFICATE OF SERVICE 

The undersigneil hereby cerlifics that on this 2J^day ol March, 20! 1, a Lrne and correct 

copy of the foregoing MOTION FOR RELIEF TO FILE RESPONDENT'S RFBD TTAl 

IN SUPPORT OF ITS AFFIRMATIVE DEFENSES was seized as follows: 

The Honorable Richard C Goodwin Scon R. Morris 

OfHce of Hearings, M-20 federal Aviation Administration 

1200 New Jersey Avenue, S.E. Northwest Mmuitain Region, ANM-7 

Cast Building Ground Floor. Rm El2-320 1601 Lind Avenue ,S.VV, 

Wa.shingion, D.C. 20590 Rcnton, Washington 98057 

j f'iicsimile and Federal Kxprcss) )'Facsiniil(.' and Federal Esprcs.s^ 

Federal Aviuiion Administration 

AUn: Hearing Docket Clerk, AGC-430 

Wilbm- Wright liuilding Suite 2W|(W0 

SOO Independence Avenue SW 

Washington, f)C 20591 

/Federal Exprcxs/ 
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Mnti 'i«so 

•foddC. Emerson. ,78175 

444 South River Road 

St, George, Utaii, 1S4790 

1 elcphoiie: (435) 634-3530 

Facsimile: (435) 6:U-3505 

Attorney for SkyWest Airlines. Inc. 

•r-a, 

**^ a*-<, 

MAR 2 5 20t1 

HEARING DOCKET 

UNITED STATES OF AMERICA 

DEPARTMENT OF TR.\NSPORT.\TION 

OFFICE OF HEARINGS 

WASHING ION, D.C. 

In the Matter of: 

SkyWest .Airlines, Inc. 

RESPONDEN I'S REBUTTAL IN 

SUPPORT OF ITS AFFIRMATIVE 

DEFENSES 

FAA DOCKET CPO(39NMO0l 2 

DMS No. FAA-2009-0979 

FAA Case No. 2009NM()r,0042 

-fudge: Richard C, Goodwin 

INTRODUCTION 

The FAA attempts to avoid ti\e Accardi Doctrine by creating distinctions that do not exist 

and minimizing the import of Order 2150.3B. It claims that Inspectors Crain and Blauer did not 

really know ihey were witnessing potential violations, despite the (act that they told Tylor Lewis 

tlicy had seen potential violations before they drove back lo the CMC on February 17. Most 

shockingly, the FAA relics on Joan Peterson's testimony that she falsified her in.spcctor 

statement lo prove the CMO did not have notice of the February 10 violations unlil February I 7. 

.All of these arguments fail, for the reasons set forth below. 
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REBUTTAL ARGUMEN I 

There are do/ens of cases Ihai apply the Accardi doctrine, only one of which being U.S. 

V. Hfjiicr, 420 F.2d ,S()9 (4"' Cir. 1969) which SkyWest cited in its Reply iirief. The FAA 

attempts to distinguish fh'fner by claiming it was a criminal case and the rights announced weie 

merely an outgrowth of the recently enunciated Miranda warning. Ft also claimed U.S. v. Leahy. 

a first Circuit case decided in 1970, somehow limited the Supreme Courl's .Accardi tloelrine by 

requiring individual rights to be at stake. Finally, the FAA argues that its Order is not really an 

Order - but is nothing more than a "guide/' 

These distinctions are unpersuasi ve. As to Hefner, the Court spcei/ieally declined lo 

apply the Miranda doctrine {fd. al 810) and based its ruling solely on Accardi, which it discussed 

at length. 

As lo the First Circuit's Leahy opinion, four years later the Supreme Court again cited 

Accardi and found that even nonbinding guidance manuals, even in a civil case, come under its 

pm-view. The question vvhieh arose in Morion v. Ruiz, 415 U.S. 199 (1974) was whether the 

Bureau of Indian Affairs must make general assistance benefits available lo Indians who live 

"near'" but not "on" a reservation. The statute was silent on this matter, as were the Bureau's 

regulations. But the Court pointed to a provision of the Bureau of Indian Affairs Manual which 

said that directives that relate to the public, including Indians, are to be published in the Code of 

Federal Rogulalions. The Court held that under this provi.sion, the Bureau was required lo 

publish its eligibility standards in the CFR if it wanted to restrict general assistance benefits to 

Indians not living on reservations. Id at 234. Morton is notable beciiu.se the instruction in the 

Manual to publish certain rules in the CFR uas a purely infernal procedural instruction. The 

IBurcau of Indian Ai'fairs Manual, which (he Court held created a binding duty on the agency. 
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was not a legis];iiivc rLde, bui merely a nonbinding guidance dociunenl. Id. at 235. Memos, 

circulars, guidebooks, press releases, inicrprclaiivc rides, policy sratemenls, and legislative rules 

have all been mechanisms by which an agency announces limits on its own discretion. ' 

ihe FAA ne.\l argues \\\c Accanll doctrine only works to vindicate individual rights. 

Again, the FAA makes a distinction where the Supreme Court has not. Indeed, the Court diti the 

opposite in the most tiimous case in the . tccardi lineage. In Unired States v. Nixon, 41N U.S. 6S3 

(1974) Ihe Court forced President Ni.xon to tiuii over his secret tape recordings to the Watergate 

special prosecutor. It was a dispute between the President, who claimed flic (apes were 

privileged, and ihe special proseculoi", who had issued a subpoena for the lapes. Ni.xon's lawyers 

argued that such an iiiira-branch dispute w.is not the kind of case or controversy that could be 

resolved by ihe courts. The Supreme Court rcjccled the President's challenge to thcjusticiabiliiy 

of the dispute on ihc authority of Accardi. Id. at 696. The only individual whose right was 

uniquely affected by the proceeding was the President ~ and the Accardi principle was invoked 

lo defeat the claim of privilege, not validate it. 

Even as all of the FAA's attempts to narrow and distinguish Accardi wither, the fact 

remains that Order 2150.3B does create individual rights and cannot be dismissed as a mere 

"guide." li is an Order from the FAA Administrator that comprehensively sets forth how ihc 

Agency vvill exercise its di.scretion in giving notice, enforccmenl and sanctioning of violations. 

Specifically, the Order tells certificate holders that its inspectors w'ill not wait to notify of 

potential viohuious, as such, it creates a notice right that ccrtitlcale holders may rely on. I iere, a 

SkyWesi deicing manager interacted with FAA inspectors who observed potential violations on 

t"<>ia tk-s(.ripiMin of ihe wide vaiiciy otriK-clianisms by "lilch .in ;ii;i;iicy can iinniHiiK\' it.s poljcv 

jiklgiiiciKs. SI.-C.V/. h\u:\b':\h \lii'iU\. .-li^ciuv ('/joirc III Fo/ieyiiui/,iiii^ l-nrm. 71 t/.(.hi. L. Rev. I^S?. l.lN.i'-l-lO'; 

(2004), 
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February 10 and 17 but did nothing to put him on notice as required by 2150.3U chapter 2-2 

.section 3(ci) wbicli states "in any situation where 1-AA enforccmenl personnel identify a txitential 

violation, they take appropriate steps immediately to notify a responsible person who can take 

appropriate action (o prevent it." (Emphasis added.) 

The FAA passed On ihree obvious opportunities lo notify SkyWest of the potential 

violations so ihat continuing violations could be slopped. This happened (i) on February 10 

when Tylor Lewis introduced himself to Joan Peterson and asked her for contact infonnalion 

(after she hatl already noted potential violaiions)", (2) the week-long period betweeii February 10 

and 17 when the CMO had evidence of potential violaiions, and (3) during the hour-long break 

between deicing operations on February 17. 

For nil her aitempis lo claim ignorance on February 10, Inspector Peterson's wriiicn 

statement clearly says: 

On the morniniJ of February 10, 2009, In.specior Peterson spent 

several hours conducting Element Performance Inspection (EPI) 

.3.1.7 siii-vclllance at the Salt Lake City hiternational Aii-port, 

Salt Lake City, Utah (SLC). I observed discrepancies on six of 

the ten aircraft being deice/anti-iccd by SkyWesi Airiines, Inc. 

personnel. Prior to the observations of the aircraft being DI/AI 

a while van wiih SkyWest Airlines markings was parked next to 

my vehicle and was operated by a SkyWest Airlines, Inc. supei-visor 

Mr. Taylor Lewis. The supervisor came over to my vehicle prior 

to the observations of the aircraft being deiced/anti-iced and asked 

for my name and phone number which I gave to him. I did not have 

the opportunity to dkscuss the findings of my observation.s with ihe 

supervisor as he was always on the radio during this time. I informed 

llie Principal Operations Inspector the DI/AI crews were not following 

proccdures outlined in their manual rct^ardim^ spray r)attei-ns and techniques. 

Respondent's Exhibit I, emphasis added. This document was signed by Ms. Peterson and dated 

February 10. E\en though the document slates that she infonned ihc POI that SkyWest was not 

Tr, L\cJ7S, Line 14-21 
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following iis deicing procedures on February 10''\ the FAA argues thai the wriilen statemcnl 

iloes not really mean what is clearly vvriilen on its face. Frankly, Inspector Pelersoji'o testimony 

was shocking. Peter.son leslified that she backdated' her Inspector\s Statement a full week', thus 

the notice to her supervisors was not given unlil l-'cb 17. It is mind boggling, after this 

admission, that the FA.A. relies on any other i>ari of her testimony as credible - i.e., ihal she did 

noi know whether fylor Lewis "was a member of management or a frontline worker" when she 

spoke with him. >SVL* Complainant's Rebuttal Brief at page 9, line 17. To the contrary, Mr. Lewis 

lestitled thai he approached her vehicle and let her know he wiis ihe Manager of Deicing 

Operations"'' and his credibility has not been shattered by the backdating of any of his records in 

this case. 

Finally, even if she wrote the statement on the 17''\ there is no indication in the document 

itself that she waited until the 17^'' to give the POI notice. All actions in this siaiement arc 

couched on the I()"\ She also testified that she came into the office between ihe 10''' and the I 7''' 

and worked a full day'', so there was another missed opportunity to notify the POI and/or 

SkyWest of her findings. Her credibility is such a hash that we may never know what she did, 

but the document created most closely in time lo the incident clearly stales that she put 

SkyWest\s CMO on notice of her observations on February 10. 

1 leaven lielp a iiicchanic or airman who backdiilcs a rccorJ, .Suoli falsification i.s ^louiuls (or cmer|4ent;y 

rov()(,aiion ofihc iiidi\itJujl s coiTil'uratc (See t-'AA v. Fciiil/i-nir, Case N'n, 2U10.\'.^[OrtO().n) hotiiu.sc they LU\- no 

lonyei- qiuliiicd to Iwki ilic ocriincue, Mow Petersoa's cieilihiliry survives i5 not i;,\pluineil by tlie TAA, ev^a a;, ii 

relics on lior coniradictoiy icsiimony ro t:l;nni a had no notice ofllic Fob 10 ob.servatiuns until Feb 17, 

•• I r. LU 382. r.inc 20.22, fr. ,u .^S3. Line 1-12 

•^ Tr, Lii2.~S. ( ine 2-4. 

"tr. al 402, Line 2-7 
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The third opportunity to notify arose while Crain and BLuicr conducted surveillance. To 

his credit, Inspector Blauer frankly :idmittcd that notice should have been given in the hour-long 

break belAvccn deicing operations on Februnry 1 7th^ which would have slopped the continuing 

alleged violations that occurred an hour later and represent ^48,000 of the proposed penalty. The 

FAA's argtmiciU, that Blauer and Crain were not sure if they were witnessing a potential 

violation, is simply ludicrous. They both had a copy of the deicing program on their laps which 

included the specific segment that addressed ihe "rip to root" spray pattern.^ In fact. Inspector 

Crain was the content expert and the "point of contact" for SkyWest's deicing program at the 

CMO. He obviously knew he was witnessing a poteniial violation and attempted to document 

it, however haphazardly, in his notes. Indeed, Mr. Crain told Tylor Lewis he had witnessed a 

poteniial violation at the end of his obsci"vation'" so clearly additional research was not needed in 

order to make the required notification. 

Finally, the FAA complains in footnote 11 in Complainant's Rebuttal Brief that SkyWest 

has placed "especially aggravating" in quotation marks but Ihc vvords are not in the transcript. 

This is false. The words "especially aggravating" appear on page 94, lino 10 of ihe transcript as 

Mr. Morris questions Mr. Crain about the Feb. 10 violation. In response, Mr. Crain testified that 

the February 10 violalion was an aggravating factor in the penalty calculation for the February 

I 7 incidents because SkyWest now had a prior violalion history. Thus, the FAA is compoiuiding 

a penally on the 17''' based on a prior violation on the 1 yf\for which the FAA admits it i^ave 

Skyl^csi no notice. Especially aggravating, indeed. 

Ic. at 247. I.ine 10-21 

\r. at 19, I.iiic- 17-I.S.' 

Ir. Ji |4fi, r.n)c 14-IV 

^ \v. al 19, I.iiic- 17-I.S. Tr. at 2 J 9, lin e 19-22. Tr. at 220. l.inc 1-3 

' " I'r. nt hT<. I inc 2-18 
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CONCLUSION 

ii is nol controversial, or even debatable, that agencies nmsl follow iheir own orders, 

regulations and .stated policy. Here, the FA.A failed to follow ils Order to provide certificate 

holders with immediate notice of a potential violation, and by so doing, allowed a penalty to 

coiUiiuie and compound. This resulted in an inordinately large fine tor an alleged violation the 

FAA freely admits is a technicality that never impacted safety.'' Whether under Accun/i, or 

basic notions ofdue process, it is central to the rule of law thai officials be bound to clear rules, 

known in adv.-jncc. The FAA asks you to ignore its published Order as an irrelevant "guide" in 

order lo jiisiify ils multiplicious penalties. ! his cannot stand and SkyWest respectfully requests 

that this action be dismissed wiih prejudice. 

DA1>:D Ihis 2>tl day of March, 2011. 

Todd C. Emerson 

Attorney for SkylVest Airlines 

Compkinianl'.s SanciJiMi Hr:cl:ii p. 10, line 6-14. 
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CERIIFICATE OF SERVK K 

The undersigned hereby certifies that on ihisJJ^day of March, 2011. a true and correct 

copy of Ihe foiegoing RESPONDEN I S REBUTTAL IN SUPPORl OF ITS 

AFFIRM A riVE DEFENSES was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1 200 New .lersey Avenue, S.E. 

Fast Building Ground Floor. Rm El 2-320 

Washington, D.C. 20590 

[Facsiiniti' and Federal F.xprcs.s] 

Federal Aviation Administration 

Attn; Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

SOO Independence Avenue SW 

WashingTon, DC 20591 

Scoll R. Morris 

Federal Aviation Administration 

Northwest Mountain Region, ANM-7 

16{»1 Lind .Avenue S.W. 

Rcnton. WA 9S057 

I Facsimile and Federal Express} 

(Federal Express/ " ^