U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATIONADMINISTRATION 

# F1ECEIVED
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# ocr 2 9 2015 HEARING DOCKET FEDERAL AVIATION ADMINISTRATION Complainant/ Appellant,
v. DocketNo. 2012NM0650025 FDMS No. FAA 2013-0292
SKYWESTAIRLINES, INC. Respondent/Appellee. 

### ----------------------------------------------------------X BRIEF OF RESPONDENT/APPELLEE SKYWEST AIRLINES The Respondent, SkyWest Airlines, Inc. ("Respondent" or "Sky West") hereby files its Responsive Appellee Briefrequesting that the Initial Decision issued by Administrative Law Judge Richard C. Goodwin (the "ALJ") dismissing the complaint, withprejudice, be upheld and afti.rmed. The ALJ correctly determined that the Complainant failed to establish aprima facie
case and failed to carry its burden ofproofwith respect to each ofthe alleged violations. The appeal ofthe 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 violatedthe following sections ofthe Federal Aviation Regulations (14 C.F.R.): a) Section 119.5(g), when SkyWest 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 offthe aircraft with frost onthe upper wing surface;d) Section 91.13(a), when it operatedthe aircraft in a careless or reckless manner so as to endangerthe life or property ofanother. The Complainant alleged SkyWest was liable for a civilpenalty notto exceed $27,500 for each violation and sought a civil penalty in the amount of$55,000. Bywritten Initial Decisiondated May 29, 2015 (the "Initial Decision"), the ALI made the following findings, whichformed the basis ofhis determinationthat Complainant failed to establish aprima facie case or meet its burden ofproof:

• Sky West First Officer Dennis Burrperformed a tactile test onthe wings ofthe aircraft and found no frost on any surfaces. (Initial Decision at 17.)
• Burr observed no frost on the wings while checkingthe fuel door or during his second walk around ofN426SW. (!d.)
• Airman Daniel Anderson was sitting inthe 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.)
• "Thephotographs are oflittle help based onthe poor chain ofcustody and documented changes in formatting." (Initial Decision at 18.)
• TheFAAfailed to present any testimony and/or evidence to substantiate [Inspector] Perkins' conclusionthat frost was onthe wing. (Id.)
• "We fmd that FAA failed to make aprima facie case withrespect to the violations as set forth hereinabove." (Initial Decision at 19.)
• "We find thatthe FAA failed to carry its burden ofproofwithrespect to each ofthe violations alleged." (Id.)

- 2-STATEMENT OF THE FACTS On December 7, 2011, at 7:30a.m. SkyWest flight 7770 was preparing to departthe Salt Lake City International Airport. The aircraft, a CRJ-200 regiona1jet, tail number N426SW, was crewedby 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 withhis hands and found a clean, dry wing. (Tr. 315.) He later returnedto the wing to verify thatthe 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 SkyWest captain, Daniel Anderson, was a passenger onflight 7770 and was seated in 6B. He was curious as to whetherthe flight would have to stop for deicing, so he looked out his window (there was no passenger in 6A) and noted no contaminant onthe left wing at 7:40a.m. (Tr. 396-98.) He had a clear view ofthe outboard portion ofthe wing. (Tr. 398.) FAA Inspector AaronPerkins arrived one minute later at gate E-1 as part ofan 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 closelyview the condition. (Tr. 29.) Hethenreturned to his carin order to move it out ofthe way ofthe departing aircraft. He parked his vehicle on the right side ofthe aircraft and exited with his personal iPhone to photographthe aircraft. He did not use the camera issuedto him by the FAA, which was with him inhis car. (Tr. 78.)

1Complainant 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 lowerthan 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 sunlightbut was inthe shadow ofthe terminal building. (Tr. 115, 170.) He stated that he sawpatchy frost forming on the four outboard panels ofthe right wing and claimedhe took a photograph ofthe 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 believedthat frost was beginning to form onthe aircraft. (Tr. 105, 106, 142.) This is the lasttime, at 7:48 a.m., that Inspector Perkins saw frost onN426SWpriorto takeoffat 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 enteredthe sunlight and remained in full sunlight for 16 minutes. (Tr. 117, 135.) Captain Gibbs testified that both engines are typically running at pushback, whichmeans heated fuel was nowbeing circulatedthrough 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 hadrisen to -7C, the same temperature at whichBurr observedno 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 thentaxied south towards runway 341 and took offat 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 ofexposure to direct sunlight as it pushedback from E-1 and taxied out to the runway. (Tr. 134.) The aircraft was also exposed to
warmertemperatures
-- for at least 18 minutes --thanthe temperature at which Perkins observed the wisp offormingfrost. (Ex. R-4 at 2.)

- 4-The flight crew noted no degradation inperformance as the aircraft climbed out ofSalt 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 inits case in chief. Neither witness had any evidence that frost was present on aircraft N426SW at takeoff. Inspector Perkins' last observance ofthe wispy frost was 20 minutesprior to takeoff. Afterhis observation, heatwas introduced to the wings inthree ways: the air temperature rose, heated fuel was pumped through the wings, and the aircraft was bathed in slmlight for 16 minutes. The Complainant, ignoringthese changes, nevertheless argues the Administrator should infer that the delicate frost observedby Mr. Perkins was still present 20 minutes later. This is not reasonable inlight ofthe changing conditions. TheALI 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 thatthe Complainant has not challenged on appeal. Mr. Bond was leftto testify that, as a theoretical point, frost onthe wings degrades lift and control ofan aircraft, which is obviously not in dispute. Critically, neither witness was aware that the air temperature hadrisen between 7:40a.m. and 8:05 a.m. or thatheated fuel was pumped through the wings for up to 17 minutes prior to take off. Neither witness attemptedto calculate the amount offrost on the wings or the impact that rising temperatures, added solarradiation and internal wing heating would have onthe 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. 135) it had actually fallen a full degree centigrade when Inspector Perkins viewed the frost, and thenrisen backto the temperature where no frost was forming when Burr and Anderson inspected the - 5 -wings.2 (Tr. 508.) The addition ofcold fuel to the tanlcs around 7:40 a.m. (Tr. 514) likely aided the formation offrost. The burden is clear and remains unrnet. Under 14 C.F.R. § 13.224, the Complainantbears the burden ofproofin a civil penalty enforcementmatter, and to prevail, it must establishproof ofthe violations alleged by a preponderance ofthe "reliable, probative, and substantial evidence." 14 C.F.R. §§ 13.223 and 13.224; Toyota Motor Sales, FAA OrderNo. 94-28 (September 30, 1994), at II; see also In the Matter of Envirosolve, LLC, FAA OrderNo. 2006-2 (February 7, 2006), at 14. Where the Complainant fails to prove the violation, the Complaint will be dismissed. In the Matter of SkyWestAirlines, Inc., Initial Decision, DocketNo. FAA2011-0782 (April19, 2013), at 10.
Complainant DidNot Prove Frost Was Present at Takeoff The only evidence ofthe existence offrost offered bythe Complainant is the Inspector's observationwhile the aircraft is stationary at the gate, well before take-off. Ofcourse, a violation ofl21.629(b) only occurs whenthe aircraft actuallytakes offwith frost present on the wings-- and Mr. Perkins admitted thathe has "no way ofknowing" whetherthat happened. (Tr. 149.) 

### Q. In fact you don't have any evidence after 7:48 inthe morning whetherthere'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, ofknowing 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 ofthis temperature drop. The Complainant is relying on weather datathat is only repmied once per hour. Itmade no effort to gather more accurate data. (Tr. 7 5.) The Complainantrelied on the "blueribbon 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 ofthe presence offrost onthe 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 atN426SW's takeoffis sufficientto sustain Complainant's burden ofproof." See Complainant's Briefat 9. Ithas not. Complainant simply assumes that the wisp ofuneven frost, in existence for no more than eight minutes, was durable and presenttwenty minutes later. No circumstantial evidence supports this theory, in fact, the circumstances refute it. During taxi, heatwas added to the wing from the sun, the atmosphere, and the aircraft's fuel pumps. Itwould only be reasonable to infer the continuedpresence offrost ifthe conditions remained constant or got colder. Butthe conditions present between 7:52a.m. and 8:08a.m. tended to sublimate, not accrete, the frost witnessed at 7:48 a.m. The Complainantwas unaware or ignored these conditions during its case in chiefand assumed nothing changed. Indeed, Complainant's cited authority for drawing inferences, Proudv. 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 inthe 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 aprima facie case and the ALJ properly dismissed the claims. Any inference offrost at takeoffassumes that the evidence offrost gathered 20 minutes prior is reliable. It is not. InspectorPerkins did not document his observations with the camera issued to him bythe FAA, which was with him in his car. Insteadhe 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) butthe 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 pushedback at 7:52a.m., which wouldhave endangered Inspector Perkins, but he testified that he tookhis photos at close range, four minutes prior to pushback, and was safely out ofthe way prior to aircraft movement. (Tr. 34, 57.) He also failed to take.an identifyingpicture- one that included the wing frost and tail number together- because "I wasn't out doing surveillance to prepare for a court case." (Tr. I04.) So the picture ofthe 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 ofa wing that does not belong to N426SW. Further undermining the credibility ofthe photos was the Complainant's refusal to produce the originalphotos, 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 priorto the hearing, all ofwhich were denied by Complainant, because the files "had been destroyed in the ordinary course ofbusiness." (!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- ofwhere the photographs were taken. It

### could tell howthe profferedphotos had beenmodified from the originals. Dennis Burrtestified 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 notbeen modified "inany way." (Tr. 86.) In fact, the image file hadbeenmodified or altered in some

- 8-manner at 8:31 p.m. onthe date it was taken. (Tr. 453.) Instead ofinformationrich metadata files, we are left with PDF formatted wing photos, detached from the aircraft, withno indication to which aircraft the wing belongs. The ALIrightly found that "The photographs are oflittle help based onthe 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, bypresumingthat 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 omissionby aparty to produce relevant and important evidence ofwhich he has knowledge, and which is peculiarlywithin his control, raises the presumptionthat ifproduced the evidence wouldbe unfavorable to his cause.") Withoutreliable photographic evidence, we are left with Inspector Perkins' recollection ofthe events ofDecember 7, 2011, which are provably false. Claiming that he followed N426SW as ittaxied out, Perkinstraced apath on Exhibit R-2 in green inkthat ran the aircraft through an active ramp, against inboundtraffic, to Spot 23. (Tr. 36-37, 107.) Iftrue, 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 headingto the deicing pads. (Tr. 35.) He testified, as he watched the aircraft tumwest toward the runways, that the crew couldhave intendedto undergo deicing because there is a deicing pad on the west side ofthe airport. (Tr. 59.) Buthe knew, infact, that no deicing operations were happening west ofthe airport because he had spent his morning watching

- 9-deicing at the only spot in operation, Spot 9, located north ofthe airport. (Tr. 27-28, 75, 138.) Perkins later contradicted himselfwhenhe testifiedthe pilots "were not aware ofthe frost when they pushed back." (Tr. 105.) Ifthe 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 believedthe 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 waveto the crew as they slowlypushed back- for six minutes- would have stopped the flight. The ground crew was presentbut Perkins did not point out the frost to anyone. (Tr. 105-6.) There was also time to warnthe flight crew whenthe aircraft held at Spot 21, but Perkins chose to letthe aircraft depart. (Tr. 142 -153.) The only "reasonable inference" that can be drawn from Perkins' inaction is thathe 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 takeoffwith frost on its wings, merelyto perfect a violation. No, whatever Perkins observed at the gate was long gone.
Complainant's Expert Offered No Evidence ofFrost at Takeoff The only other witness in Complainant's case in chiefwas Thomas Bond, a mechanical engineer calledto offer expert opinion as to whether N426SW took offwith frost on its wings. However, no such opinion was received because Judge Goodwin heldthat Bond had no foundation to opine. Mr. Bond did not address the formation ofany alleged contamination, the dewpoint, the frost point, the ambient temperature or the amount ofsunlight available between the time frost was observed and takeoff. Ultimately, theALI found that Bond'sbackground and experience was notrelevant 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. Bondis a mechaoical engineer and was offered only as an expert "inthe subject of aircraft icing and specificallythe effects offrost on an aircraft's safety." (Tr. 189.) This was ao appropriate limitation because his education did not include the study ofatmospheric sciences. (Tr. 190.) Neither has he studied meteorology. (Tr. 190.) His only ground icing experience relates to how deicing fluids workto remove frost- not the actual formation or sublimation of frost. (Tr. 192.) In fact, whenhe needs frost for his work, he manufactures it and adds itthe wing, thenhe tests how well the deicing fluids workto remove it. (Tr. 193.) He has done no research onthe natural sublimation offrost. (Tr. 194.) As such, the Complainaot's expert, in its
case in chief, had nothing to offer otherthao to opine that Perkins' photo appeared to depict frost. But the central question ofthe case is whether frost was present onthe wings ofN426SW at 8:08a.m. aod Bond had nothing substaotive to offer, much less aoopinion 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 ofheat added to the wing bythe fuel after the engines started. He did not calculate the density ofthe frost that could have formed onthe wings underthe present atmospheric conditions. Infact, 

### Mr. Bondtestified his opinions were not drawn from the particular evidence ofthis case butwas based on "the experience I'vehad in testing and the years ofresearch workthat'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 stafffocal inreviewing issues associated with frost." (Tr. 228.) The courtwas correctto barthis 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 ofits case in chief, the Complainant had no direct evidence that frost existed
onthe wings ofN426SW at takeoff. Italso wrongly assumed that the atmospheric conditions

- II -andwing 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 betweenPerkins' 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 DidNot Prove SkyWest Failedto Follow its OpSpecs The claim that SkyWest failed to follow its operation specifications also fails because it is undisputed that Dennis Burrperformed a cold weather pre-flight inspection. (Tr. 303.) Mr. Burr reported no contaminants onthe wings. (Tr. 304.) He touched the wing withhis hands, including the area depicted inA-3 and detected a clean, dry wing. (Tr. 315.) There was sufficient daylight for Burrto performthe walk-around. (Tr. 292.) Mr. Perkins believed that Burrperformedthe walk-around and tactile inspection ofthe wing and found both Gibbs and Burr credible when they reportedno 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 outhis window (there
was no passenger in 6A) and noted no contaminant on the left wing. (Tr. 394.) He had a clear view ofthe outboardportion ofthe 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 onthe left wing when he viewed it. (Tr. 162.)

Denial ofaMotion for Decision is Not the Equivalent ofa Prima Facie Finding Despite the explicit fmding thatthe Complainant did not establish aprima facie case, Complainantnow argues, in a nifty bit of jiujitsu, that aprima facie case is established ifa motion for decisionis denied. However, the standard for a motion for decision is not whether

- 12-Complaint made aprima facie case, but whether there are genuine issues ofmaterial fact disputed bythe parties3 To prevail on a motion for decision, "the movant must showthat there is no genuine issue ofmaterial fact disputed by the parties and the movant is entitled to a decision as a matter oflaw. All evidence andinferences must be viewed in the light most favorable to the non-movant." In the Matter of BrendanAirways, LLC, Docket FAA-2009-0032 at 13-14 (Initial Decision) (November 15, 2012); see also In the Matter of Lisa GamacheWortman, FAA OrderNo. 2012-4 at 8 (May 22, 2012). The Kiscaden case cited bythe Complainant does not support its argument. 1nKiscaden, the ReviewBoard determined that a }'AAregulation was notproperly explained during the hearing, leading the ALJ to improperly grantthe respondent's motionfor decision. The Review Boardremandedthe matter for further proceeding, for the respondentto answer the FAA's allegations.Administrator v. Kiscaden, NTSB Order EA-3618, 1992 WL 172760 at *3 (1992). The applicable section ofthe Review Board's decision said "Prima facie evidence is a question offact. Itis that factual evidence sufficiently strong for [the] opponentto be called upon to
answer it. Aprimafacie case has beenmade ifthere is sufficientproofto support a sought finding, disregarding evidenceto the contrary." Administrator v. Kiscaden, NTSB Order EA3618,1992 WL 172760 at *3 n.4 (1992). The Complainant quotes only a part ofKiscaden, and then goes onto infer the reversethat denying the motion for decision meansperse that aprima facie case was established, in spite ofthe fact that the respondenthad not yet presented its evidence or response.

3 "A party may make a motion for decision,
... , at any time before the administrative lawjudge has issued an initial decision in the proceedings. The administrative lawjudge shall grant aparty's motion for decision if the pleadings, depositions, answers to interrogatories, admissions, matters that the administrative lawjudge 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 ofmaterial fact disputedby 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 FAAhad 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). InbothNTSB cases, when a motion for decision is made midway through the proceedings, the reference to "prima facie" case means onlythat sufficient evidence has been submittedto continuethe proceedings. (In re Quintana, NTSB OrderNo. EA-3737, at 3, n. 6 (1992) (citing to Kiscaden) (emphasis added).) Note thatKiscaden heldthat the existence ofa prima facie case would be determined after evidence from all sides was considered. ("A prima facie case has beenmade ifthere is sufficientproofto support a sought finding, disregarding evidence to the contrary."). Similarly, inSegura, the ReviewBoard determined

### thatthe matter should be sent back for reconsideration after additional evidence was required ofthe respondent. Here, the motion to dismiss was denied because there were facts in dispute, and Judge Goodwin held onlythat the hearing should continue. Judge Goodwin later explained, "There
were inconsistencies betweenPerkins' testimony and that ofSkyWest's witnesses. Perkins testified that he observed frost onthe wings but did not perform a tactile test. Burrperformed a tactile test and found no frost. Anderson observed no frost onthe wings while sitting in a position insideN426SWwhere 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 inboundtaxiway and spot. Sky West witnesses testified they traveled an outboundtaxiwayto Spot 21 priorto departure." (Initial Decision at 18.)

- 14-The MaximumAmount ofFrost Possible at 7:48a.m. was EliminatedNo Laterthan 8:03a.m. SkyWest offered Dr. KevinPerry to explainthe processes offrost formation and sublimation. Dr. Perry has a Ph.D. in atmospheric sciences and is chair ofthe Department of Atmospheric Sciences at the University ofUtah. The formation offrost is one ofthe processes under the purview ofatmospheric 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 usedthese peer-reviewed articles and reports as the basis for his analysis. He obtained complete official data from Salt Lake City InternationalAirport, collectedby an automated station, operated andmaintained by the National Weather Service. (Tr. 500.) He also downloaded data from a Utah Department ofAir Quality site which is located 20 miles north ofthe airport at the
same longitude to get a measure ofthe strength ofthe 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 opinionthat it was 95 percent likelythat frost didnot exist on N426SW at takeoffwas admitted into evidence. (Tr. 541.) So was his expert report. (Exhibit R4.) Together, his testimony and report are the only evidence inthe record as to whether frost existed onN426SWat takeoff.
Complainant's Criticism ofthe Frost Density Calculation is Unfounded To determine whether frost was present at takeoff, Dr. Perry first determinedhow much frost could have formed onthe wing prior to takeoff. The mathematical model used to calculate the amount offrost present onthe wing at push-back was publishedbyNASA. Neither the Complainantnor its rebuttal expert, Dr. Roy Rasmussen, challengedthe credibility or use ofthe

- 15

-NASAfrost formation model. Thus, itremains the only quantitative measure ofthe maximum amount offrost that could have beenpresent on the upper surface ofthe wing at push-back. When asked about frost density under the NASAmodel, the Complainant's expert replied, "I haven't done that calculation. I don'tknow." (Tr. 655.) He also admittedthat an additional heat
source to the wing would alter the heatbalance equation. (Tr. 656.) Inevery 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 CaptainAnderson noted no frost present at 7:40a.m. Ifthe growth period is cut in half, so is the frost density. (Tr. 528.) Inhis conservative approach, Dr. Perry did not include many factors favorable to SkyWest inhis analysis, including wing camber toward the sunlight, the energy addedto the wings by heated fuel,4 andthe frost being patchy and limited only to a small portion ofthe wing. Although the Complainant argues that the NASAmodel used by Dr. Perry had "a different temperature and different amount ofmoisture inthe air from those that existed on December 7" (Complainant's Briefat 15) the figures Dr. Perry selected were more conducive to frost formation thanwhat existed in SLC at the time. In other words, Dr. Perry allowed for a calculationthatwould overestimate the amount offrost, 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. Itmight 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 andreturned to the wing tanks. There is a heat exchange at work: fuel is pumpedfrom 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 andreturns to the wingtanks, warmer than when it left. (Tr. 294.) Thus, fhe wing tanks on N426SW received heated fuel when the engines spooledup at pushback at 7:52 a.m. (Tr. 281, 518, 524) and received a continuous flow ofheatto the wings for 16 minutes oftaxi time prior to takeoff.

- 16

-Ofcourse it is the Complainant's burdento show the presence offrost 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 ofthe ambient air temperature, strength ofsunlight, reflectivity ofwing surface, rising fuel temperature and the length oftime the aircraft and frost
was exposedto these conditions. In rebuttal only, the Complainant offered Dr. Roy Rasmussen, but he attempted to calculate frost density from looking at a

### photograph, whichplainly shows bare spots withinthe scattered, inchoate frost. (Tr. 641.) It is impossible to provide a scientifically valid estimation offrost thickness from visual ortactile inspection. This unscientific approach, coupled with Perkins' speculationthat the frost was halfthe thickness ofa piece ofpaper, is not logical, deep orpersuasive. According to Figure 17 ofthe NASAfrost 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 withthis assessment. (Tr. 642.) However, eventhis amount offrost is unreasonably high because the NASA model was formulated for conditions thathad 3.6 times
more water vapor in the atmosphere thanthe observed meteorological conditions. Dr. Rasmussen admitted under cross examinationthat this would further reduce the maximum amount offrost that couldhave formed on the upper surface ofthe wing prior to push-back. (Tr. 654-655.) Thus, both expert witnesses agree that the maximum amount ofice that could have accumulated onthe wings ofthe aircraft before push-back is onthe order of0.0005 g cm-2 The entire discussion ofhow this thickness compares to a sheet ofpaper is irrelevant because itis the
mass ofice, not its visual appearance, which determines how much energy is required for sublimationto occur.

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-Dr. Perry DidNot Overestimate HowLong N426SWwas 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 oftime that N426SW was in sunlight is undetermined (Complainant's Briefat 11-12) is directly refuted by Perkins' testimony.

EvenwhenAtmospheric Emissivity is Adjusted, the Wing Continues to Heat The only critique offered by Complainantthat merits analysis is the contentionthat Dr. Perry overestimatedthe amount ofinfrared energy being absorbed bythe wing from the atmosphere. 5 Complainantclaims 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 inthe calculation ofEatm. (Exhibit R-4 at 5.) Rasmussen suggested an emissivity value of0.1 for the atmosphere, which wouldreduce the amount ofradiation absorbed from the atmosphere from 284.5 to 28.45 Wm-2. However, the same concept must be applied to the wing's emissivitywell. Rasmussen suggests using an emissivity ofO.l for polished aluminum6 (Tr. 646, 648.) This reduces the amount ofradiation emitted by the wing to the atmosphere from 271 to 27.1 W m-2. The net impact ofthese corrections would be to slightly reduce the amount ofenergy available to sublimate the frost

-- but this correction wouldnot change the sign of

### Q. In simple terms, the wing will still undergo heating after pushback. The conservative nature ofDr. Perry's

5 The Energy Balance Model is Q**~** Eatm +S-Ew- H. Where Q is the net heating/cooling ofthe wing, Eahn is the amount ofenergy absorbedbythe wing from the atmosphere, S is the amount ofenergy from the sun absorbed bythe wing, Ew is the amount ofenergy 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 ofthe surface and allow more energy to be absorbed.

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-calculations ensures that, even withthis correctionto the heat energy balance equation, the conclusion that the frost sublimated prior to take-offis valid. Here is the only error made bythe ALI: the experts did not rebut each other. (Initial Decision at 18.) Mr. Bondtestified inthe Complainant's case in chiefand 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 withDr. Perry, who was received as an expert in atmospheric sciences and offered scientific evidence that indicated, even adjusting for atmospheric emissivity, thatthe frost observed at 7:48 a.m. was subject to at least 16 minutes ofsustained heating. The Complainant's rebuttal expert nit-picked at the calculations butultimately could not opine that frost was still present on N426SW attakeoff. Complainant's rebuttal witness does notprove its case in chief. The NTSB Review Board has held that rebuttal testimony is not acceptable as direct evidence ofthe FAA's case-inchief. "Testimony which was received inrebuttal 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 ofCivil Procedure, arebuttal expert is one who presents "evidence [] intended solely to contradict or rebut evidence on the same subjectmatter identified by anotherparty 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 ofthe evidence offeredby an adverse party."). "Rebuttal experts cannottestify intheir parties' case-in-chief. Rebuttal expert testimony is limited to presenting evidence that 'is intended solely to contradict or rebut evidence ofthe
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).

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### The FAA argues that since Judge Goodwin found that Dr. Peny's testimony and Dr. Rasmussen's testimony "ultimately rebutted each other" (Complainant's Briefat 16), Inspector Perkins' testimony that frost was on the wings mustbe accepted, canyingthe burden ofproof and establishing theprima facie 

### case. However theprima facie 

### case remains unproven. There is
no testimony or evidence presented bythe FAA to establishthat frost existed on the wings when the aircraft took off. Dr. Rasmussen's criticisms ofDr. Peny do not establish that frost existed when the aircraft took offand, cannot be used to establish thatprima facie 

### case. CONCLUSION 

### The findings and decision ofthe ALJ are clearly supported by its findings offact and conclusions oflaw. Accordingly, Respondent respectfully requests thatthe Complainant's appeal be denied and the ALI's decision be affirmed. Dated: October 28,2015

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### Todd C. Emerson SkyWest Airlines, Inc. 444 South River Road St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505CERTIFICATE OF SERVICE I hereby certify that onthis date I have served by FedEx, postage prepaid, and the original and one copy ofthe foregoing Reply BriefofRespondent/Appellee SkyWest Airlines, addressed to: Federal Aviation Administration 800 Independence Avenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl00
I hereby certifythis date I have served by FedEx, postage prepaid, and electronic mail a copy ofthe foregoing Reply BriefofRespondent/Appellee Sky WestAirlines addressed to: Casey E. Gardner EnforcementDivision, AGC-300 Federal AviationAdministration Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591

Dated: October 28, 2015

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