U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

F1ECEIVED 

----------------------------------------------------------X 

ocr 2 9 2015 

FEDERAL AVIATION HEARING DOCKET 

ADMINISTRATION 

Complainant/ Appellant, 

v. 

Docket No. 2012NM0650025 

FDMS No. FAA 2013-0292 

SKYWEST AIRLINES, INC. 

Respondent/ Appellee. 

----------------------------------------------------------X 

BRIEF OF RESPONDENT/APPELLEE 

SKYWEST AIRLINES 

The Respondent, SkyWest Airlines, Inc. ("Respondent" or "Sky West") hereby files its 

Responsive Appellee Brief requesting that the Initial Decision issued by Administrative Law 

Judge Richard C. Goodwin (the "ALJ") dismissing the complaint, with prejudice, be upheld and 

afti.rmed. The ALJ correctly determined that the Complainant failed to establish a prima facie 

case and failed to carry its burden of proof with respect to each of the alleged violations. The 

appeal of the Federal Aviation Administration ("Complainant" or "FAA") should therefore be 

denied. 

THE ALJ'S FINDINGS 

The Complainant alleged that Sky West aircraft N426SW departed Salt Lake City, Utah 

on December 7, 2011, with frost adhering to the aircraft's upper wing surfaces, which would 

have violated the following sections of the Federal Aviation Regulations (14 C.F.R.): 

a) Section 119.5(g), when Sky West operated as a direct air carrier when it failed to 

comply with its Operations Specifications concerning aircraft deicing; 

b) Section 119.5 (/), when it operated the aircraft under Part 121 when it failed to comply 

with its Operations Specifications concerning aircraft deicing; 

c) Section 121.629(b), when it took off the aircraft with frost on the upper wing surface; 
d) Section 91.13(a), when it operated the aircraft in a careless or reckless manner so as 

to endanger the life or property of another. 

The Complainant alleged Sky West was liable for a civil penalty not to exceed $27,500 

for each violation and sought a civil penalty in the amount of $55,000. 

By written Initial Decision dated May 29, 2015 (the "Initial Decision"), the ALI made the 

following findings, which formed the basis of his determination that Complainant failed to 

establish a prima facie case or meet its burden of proof: 

• Sky West First Officer Dennis Burr performed a tactile test on the wings 

of the aircraft and found no frost on any surfaces. (Initial Decision at 17.) 

• Burr observed no frost on the wings while checking the fuel door or 

during his second walk around ofN426SW. (!d.) 

• Airman Daniel Anderson was sitting in the passenger cabin in a position 

to observe the left wing ofN426SW. He observed no frost on any 

surfaces. (Id.) 

• Inspector Perkins did not perform a tactile test on the wing. (Id.) 

• "The photographs are of little help based on the poor chain of custody and 

documented changes in formatting." (Initial Decision at 18.) 

• The FAA failed to present any testimony and/or evidence to substantiate 

[Inspector] Perkins' conclusion that frost was on the wing. (Id.) 

• "We fmd that FAA failed to make a prima facie case with respect to the 

violations as set forth hereinabove." (Initial Decision at 19.) 

• "We find that the FAA failed to carry its burden of proof with respect to 

each of the violations alleged." (Id.) 

- 2-
STATEMENT OF THE FACTS 

On December 7, 2011, at 7:30a.m. SkyWest flight 7770 was preparing to depart the Salt 

Lake City International Airport. The aircraft, a CRJ-200 regiona1jet, tail number N426SW, was 

crewed by Captain Thomas Gibbs and First Officer Dennis Burr. 

At 7:32 a.m.

1 Mr. Burr performed a cold weather pre-flight inspection and detected no 

contaminants on the wings. He touched the wing with his hands and found a clean, dry wing. 

(Tr. 315.) He later returned to the wing to verify that the fuel door was shut. (Tr. 262.) Again, 

he did not view frost on the wing. (Tr. 263.) The temperature at 7:30a.m. and 7:35 a.m. was -7 

Celsius. (Tr. 508) (Ex. R-4 at 2.) 

Another Sky West captain, Daniel Anderson, was a passenger on flight 7770 and was 

seated in 6B. He was curious as to whether the flight would have to stop for deicing, so he 

looked out his window (there was no passenger in 6A) and noted no contaminant on the left wing 

at 7:40a.m. (Tr. 396-98.) He had a clear view of the outboard portion of the wing. (Tr. 398.) 

FAA Inspector Aaron Perkins arrived one minute later at gate E-1 as part of an element 

performance inspection on SkyWest's deicing operations. Inspector Perkins believed he saw 

frost forming on the left wing at 7:41 a.m. and left his vehicle to more closely view the 

condition. (Tr. 29.) He then returned to his car in order to move it out of the way of the 

departing aircraft. He parked his vehicle on the right side of the aircraft and exited with his 

personal iPhone to photograph the aircraft. He did not use the camera issued to him by the FAA, 

which was with him in his car. (Tr. 78.) 

1 Complainant claims the inspection happened between 7:10a.m. and 7:20a.m. but has cited the lawyer's 

question, not the witness's answer, as evidence. Mr. Burr testified his inspection occurred 20 minutes prior to 

departure, which correlates to 7:32a.m. 

- 3 -
As Perkins performed these tasks the temperature dipped to -8 Celsius at 7:40 and 7:45 

a.m. --one full degree lower than when Burr performed his tactile inspection at 7:30a.m. (Tr. 

319, 508) (Ex. R-4 at 2.) 

Inspector Perkins testified the aircraft was not parked in direct sunlight but was in the 

shadow of the terminal building. (Tr. 115, 170.) He stated that he saw patchy frost forming on 

the four outboard panels of the right wing and claimed he took a photograph of the right wing at 

7:48a.m. (Tr. 82.) He testified that he did not believe the crew was aware that frost was 

forming. (Tr. 105.) He made no effort to alert the ground or flight crew that he believed that 

frost was beginning to form on the aircraft. (Tr. 105, 106, 142.) 

This is the last time, at 7:48 a.m., that Inspector Perkins saw frost on N426SW prior to 

takeoff at 8:08a.m. (Tr. 58.) By 7:50a.m. the temperature had risen to -7.2 C. (Ex. R-4 at 2.) 

Pushback occurred at 7:52a.m. (Tr. 57, 128) and Inspector Perkins testified the aircraft 

immediately entered the sunlight and remained in full sunlight for 16 minutes. (Tr. 117, 135.) 

Captain Gibbs testified that both engines are typically running at pushback, which means heated 

fuel was now being circulated through the wings. (Tr. 294.) The tug was detached from the 

aircraft and it taxied away from the gate area at 7:58a.m. 

At 8:00a.m. the temperature had risen to -7C, the same temperature at which Burr 

observed no frost during his walk-around. (Tr. 319, 507.) (Ex. R-4 at 2.) 

The aircraft arrived at Spot 21 at 8:02a.m., where it held until8:04 a.m. with its wings 

angled into the sunlight. (Tr. 177.) Flight 7770 then taxied south towards runway 341 and took 

off at 8:08 a.m. without incident. (Tr. 59.) The temperature held at -7C at 8:05 a.m. and 8:10 

a.m. (Ex. R-4 at 2.) This gave the aircraft 16-17 minutes of exposure to direct sunlight as it 

pushed back from E-1 and taxied out to the runway. (Tr. 134.) The aircraft was also exposed to 

warmer temperatures -- for at least 18 minutes --than the temperature at which Perkins observed 

the wisp offorming frost. (Ex. R-4 at 2.) 

- 4-
The flight crew noted no degradation in performance as the aircraft climbed out of Salt 

Lake City and did not receive any alerts from the aircraft computer indicating degraded airspeed 

or lift. (Tr. 269, 341-42.) 

ARGUMENT 

The Complainant only called two witnesses in its case in chief. Neither witness had any 

evidence that frost was present on aircraft N426SW at takeoff. Inspector Perkins' last 

observance of the wispy frost was 20 minutes prior to takeoff. After his observation, heat was 

introduced to the wings in three ways: the air temperature rose, heated fuel was pumped through 

the wings, and the aircraft was bathed in slmlight for 16 minutes. 

The Complainant, ignoring these changes, nevertheless argues the Administrator should 

infer that the delicate frost observed by Mr. Perkins was still present 20 minutes later. This is not 

reasonable in light of the changing conditions. The ALI did not allow Complainant's expert, Mr. 

Thomas Bond, to speculate as to whether the frost observed at 7:48a.m. would still be present at 

8:08 a.m. because he lacked foundation to offer such an opinion- a ruling that the Complainant 

has not challenged on appeal. Mr. Bond was left to testify that, as a theoretical point, frost on the 

wings degrades lift and control of an aircraft, which is obviously not in dispute. Critically, 

neither witness was aware that the air temperature had risen between 7:40a.m. and 8:05 a.m. or 

that heated fuel was pumped through the wings for up to 17 minutes prior to take off. Neither 

witness attempted to calculate the amount of frost on the wings or the impact that rising 

temperatures, added solar radiation and internal wing heating would have on the alleged frost. 

By 7:50a.m. the temperature had risen to -7.2 C and at 8:00a.m. the temperature was 

back up to -7 C. While the FAA believes the temperature has not changed (Tr. 13 5) it had 

actually fallen a full degree centigrade when Inspector Perkins viewed the frost, and then risen 

back to the temperature where no frost was forming when Burr and Anderson inspected the 

- 5 -
wings. 2 (Tr. 508.) The addition of cold fuel to the tanlcs around 7:40 a.m. (Tr. 514) likely aided 

the formation of frost. 

The burden is clear and remains unrnet. Under 14 C.F.R. § 13.224, the Complainant bears 

the burden of proof in a civil penalty enforcement matter, and to prevail, it must establish proof 

of the violations alleged by a preponderance of the "reliable, probative, and substantial 

evidence." 14 C.F.R. §§ 13.223 and 13.224; Toyota Motor Sales, FAA Order No. 94-28 

(September 30, 1994), at II; see also In the Matter of Envirosolve, LLC, FAA Order No. 2006-2 

(February 7, 2006), at 14. Where the Complainant fails to prove the violation, the Complaint 

will be dismissed. In the Matter of Sky West Airlines, Inc., Initial Decision, Docket No. FAA2011-0782 (April19, 2013), at 10. 

Complainant Did Not Prove Frost Was Present at Takeoff 

The only evidence of the existence of frost offered by the Complainant is the Inspector's 

observation while the aircraft is stationary at the gate, well before take-off. Of course, a 

violation of l21.629(b) only occurs when the aircraft actually takes off with frost present on the 

wings-- and Mr. Perkins admitted that he has "no way of knowing" whether that happened. (Tr. 

149.) 

Q. In fact you don't have any evidence after 7:48 in the morning whether there's frost on 

those wings. The airplane departed at 8:08. Is that correct? 

A. That's correct. 

Q. So you've got 20 full minutes, a gap, of knowing whether or not that frost was still 

there. Is that right? 

2 Ofticial weather data collected in five minute increments found that the temperature dropped to -8 C at 

7:40am. (Tr. 508.) The Complainant has no record of this temperature drop. The Complainant is relying on 

weather data that is only repmied once per hour. It made no effort to gather more accurate data. (Tr. 7 5 .) The 

Complainant relied on the "blue ribbon weather package" which did not provide enough data to predict fi·ost 

deposition and sublimation. The data points were hourly, so that temperature data was only available at 7 and 8 a.m. 

(Tr. 507.) 

- 6-
A. That's right. 

Q. Did you attempt to obtain other evidence of the presence of frost on the wings other 

than what you've presented here today? 

A. No. (Tr. 153-54.) 

Lacking direct evidence, the Complainant claims that it has offered "circumstantial 

evidence leading to the reasonable inference that it was more likely than not that the frost 

observed by Inspector Perkins existed at N426SW' s takeoff is sufficient to sustain 

Complainant's burden of proof." See Complainant's Brief at 9. It has not. 

Complainant simply assumes that the wisp of uneven frost, in existence for no more than 

eight minutes, was durable and present twenty minutes later. No circumstantial evidence 

supports this theory, in fact, the circumstances refute it. During taxi, heat was added to the wing 

from the sun, the atmosphere, and the aircraft's fuel pumps. It would only be reasonable to infer 

the continued presence of frost if the conditions remained constant or got colder. But the 

conditions present between 7:52a.m. and 8:08a.m. tended to sublimate, not accrete, the frost 

witnessed at 7:48 a.m. The Complainant was unaware or ignored these conditions during its case 

in chief and assumed nothing changed. 

Indeed, Complainant's cited authority for drawing inferences, Proud v. C.A.B., 357 F.2d 

221 (7th Cir. 1966), states that an inference "is not sufficient to sustain a charge where evidence 

has been introduced which in some manner rebuts the inference." !d. at 224. All evidence in the 

record after 7:48 a.m. rebuts the inference that the frost endured. Speculation, assumptions and 

rebutted inferences are not the "reliable, probative, and substantial evidence" required of 

Complainant to establish a prima facie case and the ALJ properly dismissed the claims. 

Any inference of frost at takeoff assumes that the evidence of frost gathered 20 minutes 

prior is reliable. It is not. Inspector Perkins did not document his observations with the camera 

issued to him by the FAA, which was with him in his car. Instead he chose to use his personal 

- 7-
iPhone. (Tr. 78.) He testified that he took the photograph at 7:48a.m. based on the time 

indicated on his iPhone (Tr. 58) but the metadata gleaned from the PDF file demonstrated that 

the photo was actually taken at 7:53 a.m. and 11 seconds. (Tr. 464.) This means that the frost 

picture likely comes from a different aircraft because N426SW pushed back at 7:52a.m., which 

would have endangered Inspector Perkins, but he testified that he took his photos at close range, 

four minutes prior to pushback, and was safely out of the way prior to aircraft movement. (Tr. 

34, 57.) He also failed to take.an identifying picture- one that included the wing frost and tail 

number together- because "I wasn't out doing surveillance to prepare for a court case." (Tr. 

I 04.) So the picture of the wing stands alone, does not identify the aircraft, was actually taken 5 

minutes and 11 seconds after Perkins testified he took it and was either taken at great hazard 

while the craft was in motion, contrary to Perkins' testimony, or is a photo of a wing that does 

not belong to N426SW. 

Further undermining the credibility of the photos was the Complainant's refusal to 

produce the original photos, in electronic form, and the blatant misrepresentations that the files 

had been destroyed. (See Respondent's Post Trial Brief, Ex. I.) SkyWest made three written and 

one verbal request for this evidence prior to the hearing, all of which were denied by 

Complainant, because the files "had been destroyed in the ordinary course of business." (!d.) 

However, Perkins testified at his deposition, and later at the hearing, that the files still existed on 

his computer. (Tr. 82-83.) 

The refusal to produce this key evidence is outrageous. The metadata surrounding an 

electronic photograph could have determined the location- down to the square foot- of where 

the photographs were taken. It could tell how the proffered photos had been modified from the 

originals. Dennis Burr testified that Exhibit A-3 is not the same picture that Inspector Perkins 

showed him later on December 7. (Tr. 340.) But Mr. Perkins testified that Ex. A-3 had not been 

modified "in any way." (Tr. 86.) In fact, the image file had been modified or altered in some 

- 8-
manner at 8:31 p.m. on the date it was taken. (Tr. 453.) Instead of information rich metadata 

files, we are left with PDF formatted wing photos, detached from the aircraft, with no indication 

to which aircraft the wing belongs. 

The ALI rightly found that "The photographs are oflittle help based on the poor chain of 

custody and documented changes in formatting." (Initial Decision at 18.) The Administrator 

should correct his counsel's failure to produce this critical evidence, and the misrepresentations 

made to Sky West about its destruction, by presuming that the metadata was unfavorable to the 

Agency's case. See, e. g., Tendlerv. Jaffe, 203 F.2d 14, 19 (U.S. App. D.C. 1953) ("[T]he 

omission by a party to produce relevant and important evidence of which he has knowledge, and 

which is peculiarly within his control, raises the presumption that if produced the evidence 

would be unfavorable to his cause.") 

Without reliable photographic evidence, we are left with Inspector Perkins' recollection 

of the events of December 7, 2011, which are provably false. Claiming that he followed 

N426SW as it taxied out, Perkins traced a path on Exhibit R-2 in green ink that ran the aircraft 

through an active ramp, against inbound traffic, to Spot 23. (Tr. 36-37, 1 07.) If true, this would 

have been a good opportunity for Inspector Perkins to issue a violation, as Spot 23 is reserved for 

inbound traffic. (Tr. 265, 313.) Three airmen refuted Perkins' account. (Tr. 265, 310, 411.) 

Inspector Perkins also recanted his deposition testimony about how long the aircraft sat at Spot 

23, shortening his estimate by several minutes. (Tr. 123-24) (Ex. R-5, 61:12.) 

The most troubling contradiction came when Inspector Perkins defended his decision not 

to stop the aircraft. Perkins testified that he followed N426SW as it taxied because he believed it 

was heading to the deicing pads. (Tr. 35.) He testified, as he watched the aircraft tum west 

toward the runways, that the crew could have intended to undergo deicing because there is a 

deicing pad on the west side of the airport. (Tr. 59.) But he knew, in fact, that no deicing 

operations were happening west of the airport because he had spent his morning watching 

- 9-
deicing at the only spot in operation, Spot 9, located north of the airport. (Tr. 27-28, 75, 138.) 

Perkins later contradicted himself when he testified the pilots "were not aware of the frost when 

they pushed back." (Tr. 105.) If the crew was unaware that frost had formed, then Perkins could 

not have plausibly believed the aircraft was headed to the deicing pads to have it removed. 

Leaving the inconsistency aside, consider that Perkins believed the crew was unaware of 

the dangerous condition of their aircraft, yet he made no attempt to stop them. A word to the tug 

operator or a simple wave to the crew as they slowly pushed back- for six minutes- would have 

stopped the flight. The ground crew was present but Perkins did not point out the frost to 

anyone. (Tr. 105-6.) There was also time to warn the flight crew when the aircraft held at Spot 

21, but Perkins chose to let the aircraft depart. (Tr. 142 -153.) 

The only "reasonable inference" that can be drawn from Perkins' inaction is that he no 

longer believed the wisps he observed at the gate still existed after a 16 minute taxi through the 

warm sunlight. With 44 souls onboard, it is unreasonable and unthinkable to believe an FAA 

Inspector would allow an aircraft to takeoff with frost on its wings, merely to perfect a violation. 

No, whatever Perkins observed at the gate was long gone. 

Complainant's Expert Offered No Evidence of Frost at Takeoff 

The only other witness in Complainant's case in chief was Thomas Bond, a mechanical 

engineer called to offer expert opinion as to whether N426SW took off with frost on its wings. 

However, no such opinion was received because Judge Goodwin held that Bond had no 

foundation to opine. Mr. Bond did not address the formation of any alleged contamination, the 

dew point, the frost point, the ambient temperature or the amount of sunlight available between 

the time frost was observed and takeoff. Ultimately, the ALI found that Bond's background and 

experience was not relevant to determining whether the frost Perkins observed at the gate had 

endured until takeoff. (Initial Decision at 19.) Notably, the Complainant makes no effort to 

- 10-
rehabilitate its expert on appeal aod does not ask the Administrator to accept Bond's opinion on 

whether frost existed at takeoff. 

Mr. Bond is a mechaoical engineer and was offered only as an expert "in the subject of 

aircraft icing and specifically the effects of frost on an aircraft's safety." (Tr. 189.) This was ao 

appropriate limitation because his education did not include the study of atmospheric sciences. 

(Tr. 190.) Neither has he studied meteorology. (Tr. 190.) His only ground icing experience 

relates to how deicing fluids work to remove frost- not the actual formation or sublimation of 

frost. (Tr. 192.) In fact, when he needs frost for his work, he manufactures it and adds it the 

wing, then he tests how well the deicing fluids work to remove it. (Tr. 193.) He has done no 

research on the natural sublimation offrost. (Tr. 194.) As such, the Complainaot's expert, in its 

case in chief, had nothing to offer other thao to opine that Perkins' photo appeared to depict frost. 

But the central question of the case is whether frost was present on the wings ofN426SW 

at 8:08a.m. aod Bond had nothing substaotive to offer, much less ao opinion founded in "logic, 

depth or persuasiveness." There was no expert report from Mr. Bond. There was no effort to 

gather sunlight data or measure the amount of heat added to the wing by the fuel after the 

engines started. He did not calculate the density of the frost that could have formed on the wings 

under the present atmospheric conditions. In fact, Mr. Bond testified his opinions were not 

drawn from the particular evidence of this case but was based on "the experience I've had in 

testing and the years of research work that's been done aod my associated activities within the 

FAA aod ground de-icing work with the staodard staff- the flight services- flight staodards 

services staff focal in reviewing issues associated with frost." (Tr. 228.) The court was correct to 

bar this unfounded opinion as it offered no reliable, probative or substaotial evidence to prove 

that frost was present at takeoff. (Tr. 221-228.) 

At the close of its case in chief, the Complainant had no direct evidence that frost existed 

on the wings ofN426SW at takeoff. It also wrongly assumed that the atmospheric conditions 

- II -
and wing temperature remained constant. The only circumstantial evidence, which remains 

unrefuted, is that the air temperature increased, solar radiation increased, and internal wing 

temperature increased in the 16 minutes between Perkins' observation and takeoff. The only 

reasonable inference to be drawn from this evidence is that the observed frost was not constant 

and was in fact sublimated. 

Complainant Did Not Prove Sky West Failed to Follow its OpSpecs 

The claim that Sky West failed to follow its operation specifications also fails because it is 

undisputed that Dennis Burr performed a cold weather pre-flight inspection. (Tr. 303.) Mr. Burr 

reported no contaminants on the wings. (Tr. 304.) He touched the wing with his hands, including 

the area depicted inA-3 and detected a clean, dry wing. (Tr. 315.) There was sufficient daylight 

for Burr to perform the walk-around. (Tr. 292.) Mr. Perkins believed that Burr performed the 

walk-around and tactile inspection of the wing and found both Gibbs and Burr credible when 

they reported no contaminant was found from the inspections. (Tr.l58-160.) Coincidentally, 

airman Daniel Anderson was a passenger on flight 7770 and was seated in 6B at 7:40a.m. He 

was curious as to whether the flight would stop for deicing, so he looked out his window (there 

was no passenger in 6A) and noted no contaminant on the left wing. (Tr. 394.) He had a clear 

view of the outboard portion of the wing. (Tr. 398.) Inspector Perkins admits the wing would 

have been visible to Capt. Anderson sitting in seat 6B and found him credible when he reported 

no frost was present on the left wing when he viewed it. (Tr. 162.) 

Denial of a Motion for Decision is Not the Equivalent of a Prima Facie Finding 

Despite the explicit fmding that the Complainant did not establish a prima facie case, 

Complainant now argues, in a nifty bit of jiujitsu, that a prima facie case is established if a 

motion for decision is denied. However, the standard for a motion for decision is not whether 

- 12-
Complaint made a prima facie case, but whether there are genuine issues of material fact 

disputed by the parties3 To prevail on a motion for decision, "the movant must show that there 

is no genuine issue of material fact disputed by the parties and the movant is entitled to a 

decision as a matter of law. All evidence and inferences must be viewed in the light most 

favorable to the non-movant." In the Matter of Brendan Airways, LLC, Docket FAA-2009-0032 

at 13-14 (Initial Decision) (November 15, 2012); see also In the Matter of Lisa GamacheWortman, FAA Order No. 2012-4 at 8 (May 22, 2012). 

The Kiscaden case cited by the Complainant does not support its argument. 1n Kiscaden, 

the Review Board determined that a }'AA regulation was not properly explained during the 

hearing, leading the ALJ to improperly grant the respondent's motion for decision. The Review 

Board remanded the matter for further proceeding, for the respondent to answer the FAA's 

allegations. Administrator v. Kiscaden, NTSB Order EA-3618, 1992 WL 172760 at *3 (1992). 

The applicable section of the Review Board's decision said "Prima facie evidence is a question 

of fact. It is that factual evidence sufficiently strong for [the] opponent to be called upon to 

answer it. Aprimafacie case has been made ifthere is sufficient proof to support a sought 

finding, disregarding evidence to the contrary." Administrator v. Kiscaden, NTSB Order EA3618,1992 WL 172760 at *3 n.4 (1992). 

The Complainant quotes only a part of Kiscaden, and then goes on to infer the reversethat denying the motion for decision means per se that a prima facie case was established, in 

spite of the fact that the respondent had not yet presented its evidence or response. 

3 "A party may make a motion for decision, ... , at any time before the administrative law judge has 

issued an initial decision in the proceedings. The administrative law judge shall grant a party's motion for 

decision if the pleadings, depositions, answers to interrogatories, admissions, matters that the 

administrative law judge has officially noticed, or evidence introduced during the hearing show that there 

is no genuine issue of material fact and that the party making the motion is entitled to a decision as a 

matter of law. The party making the motion for decision has the burden of showing that there is no 

genuine issue of material fact disputed by the parties." 14 CFR § 13.218(e)(5). 

- 13 -
The additional case cited by the FAA- Administrator v. Segura- does not stand for the 

premise that denying a motion for decision infers that the FAA had established a prima facie 

case. Segura cites back to Kiscaden for the standard to grant a motion to dismiss. Administrator 

v. Segura, NTSB Order No. EA-3848, 1993 WL 87679, at *2-3 (1993). 

In both NTSB cases, when a motion for decision is made midway through the 

proceedings, the reference to "prima facie" case means only that sufficient evidence has been 

submitted to continue the proceedings. (In re Quintana, NTSB Order No. EA-3737, at 3, n. 6 

(1992) (citing to Kiscaden) (emphasis added).) Note that Kiscaden held that the existence of a 

prima facie case would be determined after evidence from all sides was considered. ("A prima 

facie case has been made if there is sufficient proof to support a sought finding, disregarding 

evidence to the contrary."). Similarly, in Segura, the Review Board determined that the matter 

should be sent back for reconsideration after additional evidence was required of the respondent. 

Here, the motion to dismiss was denied because there were facts in dispute, and Judge 

Goodwin held only that the hearing should continue. Judge Goodwin later explained, "There 

were inconsistencies between Perkins' testimony and that of Sky West's witnesses. Perkins 

testified that he observed frost on the wings but did not perform a tactile test. Burr performed a 

tactile test and found no frost. Anderson observed no frost on the wings while sitting in a 

position inside N426SW where he could observe the wing. Perkins testified N426SW departed 

the gate and traveled on one taxiway to Spot 23. Sky West witnesses testified that would have 

been contrary to SLC traffic flow to travel in the direction Perkins indicated because to do so 

would be using an inbound taxiway and spot. Sky West witnesses testified they traveled an 

outbound taxiway to Spot 21 prior to departure." (Initial Decision at 18.) 

- 14-
The Maximum Amount of Frost Possible at 7:48a.m. was Eliminated No Later than 8:03a.m. 

Sky West offered Dr. Kevin Perry to explain the processes of frost formation and 

sublimation. Dr. Perry has a Ph.D. in atmospheric sciences and is chair of the Department of 

Atmospheric Sciences at the University of Utah. The formation of frost is one of the processes 

under the purview of atmospheric science. (Tr. 488.) He also holds a private pilot certificate and 

has taught courses in aviation meteorology to pilots. 

Dr. Perry conducted a thorough literature search regarding frost formation on airfoils and 

used these peer-reviewed articles and reports as the basis for his analysis. He obtained complete 

official data from Salt Lake City International Airport, collected by an automated station, 

operated and maintained by the National Weather Service. (Tr. 500.) He also downloaded data 

from a Utah Department of Air Quality site which is located 20 miles north of the airport at the 

same longitude to get a measure of the strength of the Slmlight that was available. He also 

accessed data from the National Weather Service, which launches a balloon instrument twice 

daily from the Salt Lake City International airport to measure the atmospheric conditions above 

the surface. (Tr. 501.) His opinion that it was 95 percent likely that frost did not exist on 

N426SW at takeoff was admitted into evidence. (Tr. 541.) So was his expert report. (Exhibit R4.) Together, his testimony and report are the only evidence in the record as to whether frost 

existed on N426SW at takeoff. 

Complainant's Criticism ofthe Frost Density Calculation is Unfounded 

To determine whether frost was present at takeoff, Dr. Perry first determined how much 

frost could have formed on the wing prior to takeoff. The mathematical model used to calculate 

the amount of frost present on the wing at push-back was published by NASA. Neither the 

Complainant nor its rebuttal expert, Dr. Roy Rasmussen, challenged the credibility or use of the 

- 15 -
NASA frost formation model. Thus, it remains the only quantitative measure of the maximum 

amount of frost that could have been present on the upper surface of the wing at push-back. 

When asked about frost density under the NASA model, the Complainant's expert replied, "I 

haven't done that calculation. I don't know." (Tr. 655.) He also admitted that an additional heat 

source to the wing would alter the heat balance equation. (Tr. 656.) 

In every instance, Dr. Perry allowed for conditions most optimal to the Complainant's 

case. For example, Dr. Perry allowed for a twenty minute growth period between 7:30a.m. -

7:50a.m., even though Captain Anderson noted no frost present at 7:40a.m. If the growth 

period is cut in half, so is the frost density. (Tr. 528.) In his conservative approach, Dr. Perry did 

not include many factors favorable to Sky West in his analysis, including wing camber toward the 

sunlight, the energy added to the wings by heated fuel, 4 and the frost being patchy and limited 

only to a small portion of the wing. 

Although the Complainant argues that the NASA model used by Dr. Perry had "a 

different temperature and different amount of moisture in the air from those that existed on 

December 7" (Complainant's Brief at 15) the figures Dr. Perry selected were more conducive to 

frost formation than what existed in SLC at the time. In other words, Dr. Perry allowed for a 

calculation that would overestimate the amount of frost, which again, favors the Complainant. 

The more frost, the more energy needed to eliminate it. Even so, with maximum possible frost 

density, the alleged frost would have sublimated no later than II minutes into the 16 minute taxi. 

It might very well have been gone at 7:53 a.m., after heated fuel warmed the wings for one 

minute. 

4 In the CRJ-200, fuel is heated by the engine and returned to the wing tanks. There is a heat exchange at 

work: fuel is pumped from the tanks in a circuit to the engine, where unburned fuel is used as a coolant for fhe 

engine oil. The fuel collects heat from the engine oil and returns to the wing tanks, warmer than when it left. (Tr. 

294.) Thus, fhe wing tanks on N426SW received heated fuel when the engines spooled up at pushback at 7:52 a.m. 

(Tr. 281, 518, 524) and received a continuous flow of heat to the wings for 16 minutes of taxi time prior to takeoff. 

- 16 -
Of course it is the Complainant's burden to show the presence of frost at takeoff, not 

SkyWest's to prove its absence. And here, the Complainant offers nothing. There is no data or 

expert report. There is no analysis of the ambient air temperature, strength of sunlight, 

reflectivity of wing surface, rising fuel temperature and the length of time the aircraft and frost 

was exposed to these conditions. In rebuttal only, the Complainant offered Dr. Roy Rasmussen, 

but he attempted to calculate frost density from looking at a photograph, which plainly shows 

bare spots within the scattered, inchoate frost. (Tr. 641.) It is impossible to provide a 

scientifically valid estimation of frost thickness from visual or tactile inspection. This 

unscientific approach, coupled with Perkins' speculation that the frost was half the thickness of a 

piece of paper, is not logical, deep or persuasive. 

According to Figure 17 of the NASA frost formation model, the maximum amolmt of 

frost that could have formed under the observed meteorological conditions was 0.001 g cm-2

. Dr. 

Rasmussen concurred with this assessment. (Tr. 642.) However, even this amount of frost is 

unreasonably high because the NASA model was formulated for conditions that had 3.6 times 

more water vapor in the atmosphere than the observed meteorological conditions. Dr. 

Rasmussen admitted under cross examination that this would further reduce the maximum 

amount of frost that could have formed on the upper surface of the wing prior to push-back. (Tr. 

654-65 5.) Thus, both expert witnesses agree that the maximum amount of ice that could have 

accumulated on the wings of the aircraft before push-back is on the order of 0.0005 g cm-2 The 

entire discussion of how this thickness compares to a sheet of paper is irrelevant because it is the 

mass of ice, not its visual appearance, which determines how much energy is required for 

sublimation to occur. 

- 17 -
Dr. Perry Did Not Overestimate How Long N426SW was in Sunlight 

Inspector Perkins watched the pushback and testified that N426SW immediately entered 

the sunlight at 7:52a.m. and was exposed to direct sunlight for 16 minutes. (Tr. 118, 135.) 

Complainant's conjecture that the amount of time that N426SW was in sunlight is undetermined 

(Complainant's Brief at 11-12) is directly refuted by Perkins' testimony. 

Even when Atmospheric Emissivity is Adjusted, the Wing Continues to Heat 

The only critique offered by Complainant that merits analysis is the contention that Dr. 

Perry overestimated the amount of infrared energy being absorbed by the wing from the 

atmosphere. 5 Complainant claims that the value used for Eatm (284.5 W m-2) is excessively 

high because Perry assumed that the atmosphere behaves as a blackbody and did not use an 

emissivity value in the calculation of Eatm. (Exhibit R-4 at 5.) Rasmussen suggested an 

emissivity value of 0.1 for the atmosphere, which would reduce the amount of radiation absorbed 

from the atmosphere from 284.5 to 28.45 W m-2. 

However, the same concept must be applied to the wing's emissivity well. Rasmussen 

suggests using an emissivity ofO.l for polished aluminum6 (Tr. 646, 648.) This reduces the 

amount of radiation emitted by the wing to the atmosphere from 271 to 27.1 W m-2. The net 

impact of these corrections would be to slightly reduce the amount of energy available to 

sublimate the frost -- but this correction would not change the sign of Q. In simple terms, the 

wing will still undergo heating after pushback. The conservative nature of Dr. Perry's 

5 The Energy Balance Model is Q ~ Eatm +S-Ew- H. Where Q is the net heating/cooling of the wing, 

Eahn is the amount of energy absorbed by the wing from the atmosphere, S is the amount of energy from the sun 

absorbed by the wing, Ew is the amount of energy emitted from the wing to the atmosphere, and H is the heat 

transferred between the wing surface and the fuel. (Exhibit R-4.) 6 The wing surface was actually painted gray, which would significantly decrease the reflectivity of the 

surface and allow more energy to be absorbed. 

- 18 -
calculations ensures that, even with this correction to the heat energy balance equation, the 

conclusion that the frost sublimated prior to take-off is valid. 

Here is the only error made by the ALI: the experts did not rebut each other. (Initial 

Decision at 18.) Mr. Bond testified in the Complainant's case in chief and was not allowed to 

even infer, from circumstantial evidence, whether frost was present on N426SW at takeoff. His 

opinions were not based on any particular case facts, but were drawn from his general experience 

in aerodynamics. Contrast this with Dr. Perry, who was received as an expert in atmospheric 

sciences and offered scientific evidence that indicated, even adjusting for atmospheric 

emissivity, that the frost observed at 7:48 a.m. was subject to at least 16 minutes of sustained 

heating. The Complainant's rebuttal expert nit-picked at the calculations but ultimately could 

not opine that frost was still present on N426SW at takeoff. 

Complainant's rebuttal witness does not prove its case in chief. The NTSB Review 

Board has held that rebuttal testimony is not acceptable as direct evidence of the FAA's case-inchief. "Testimony which was received in rebuttal is to be given effect as rebuttal, not direct 

evidence." In the Matter of John Doe, Order EA-433 at *29, (2 N.T.S.B. 59, February 28, 

1973). 

Under the Federal Rules of Civil Procedure, a rebuttal expert is one who presents 

"evidence [] intended solely to contradict or rebut evidence on the same subject matter identified 

by another party under Rule 26(a)(2)(B) or (C) .... " F.R.C.P. 26(a)(2)(D)(ii); see also Peals v. 

Terre Haute Police Dep 't, 535 F.3d 621, 630 (7th Cir. 2008) ('The proper frmction ofrebuttal 

evidence is to contradict, impeach or defuse the impact of the evidence offered by an adverse 

party."). "Rebuttal experts cannot testify in their parties' case-in-chief. Rebuttal expert testimony 

is limited to presenting evidence that 'is intended solely to contradict or rebut evidence of the 

same subject matter identified by an initial expert witness."' Amos v. Makita USA., Inc., 2011 

U.S. Dist. LEXIS 158103,4-5 (D. Nev. Jan. 6, 2011) (internal citations omitted). 

- 19-
The FAA argues that since Judge Goodwin found that Dr. Peny' s testimony and Dr. 

Rasmussen's testimony "ultimately rebutted each other" (Complainant's Brief at 16), Inspector 

Perkins' testimony that frost was on the wings must be accepted, canying the burden of proof 

and establishing the prima facie case. However the prima facie case remains unproven. There is 

no testimony or evidence presented by the FAA to establish that frost existed on the wings when 

the aircraft took off. Dr. Rasmussen's criticisms of Dr. Peny do not establish that frost existed 

when the aircraft took off and, cannot be used to establish that prima facie case. 

CONCLUSION 

The findings and decision of the ALJ are clearly supported by its findings of fact and 

conclusions of law. Accordingly, Respondent respectfully requests that the Complainant's 

appeal be denied and the ALI's decision be affirmed. 

Dated: October 28,2015 

-20-

d, 

Todd C. Emerson 

Sky West Airlines, Inc. 

444 South River Road 

St. George, Utah, 84 790 

Telephone: (435) 634-3530 

Facsimile: (435) 634-3505 
CERTIFICATE OF SERVICE 

I hereby certify that on this date I have served by FedEx, postage prepaid, and the 

original and one copy of the foregoing Reply Brief of Respondent/ Appellee Sky West Airlines, 

addressed to: 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 00 

I hereby certify this date I have served by FedEx, postage prepaid, and electronic mail a 

copy of the foregoing Reply Brief of Respondent/Appellee Sky West Airlines addressed to: 

Casey E. Gardner 

Enforcement Division, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Dated: October 28, 2015 

- 21 -