Todd C. Emerson, #8175 444 South River Road St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505

UNITED STATES OFAMERICA DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C. 

# RECEIVED JUN 09 2014 

## HEARING DOCKET

RESPONDENT'S POST TRIALBRIEF In the Matter of: Sky WestAirlines, Inc. FAA Case No. 2012NM060025 DMS No.: FAA-2013-0292 Honorable Richard C. Goodwin



### I. TheAgency Has NotMetIts Burden OfProof. 

### A. There is no evidence the aircraft took offwith frost on its wings. On the morning ofDecember 7, 2011, FAAInspectorAaron Perkins arrived at Gate E-1 at the Salt Lake InternationalAirport, where SkyWest FlightNo. 7770 was preparing to depart. The aircraft, a CRJ-200 regionaljet, tail number N426SW, was crewed by Captain Thomas Gibbs and First Officer Dennis Burr. Itwas a coldmorning and 

### Mr. Perkins was performing an element performance inspection on SkyWest's deicing operations. He believed he saw frost onthe left wing at 7:41 a.m. (Tr. 57) and left his vehicle to more closely viewthe condition. He then returned to his car in order to move it out ofthe way ofthe departing aircraft.



### 1Althoughthe sun rose at 7:38a.m., Perkins testified the aircraft was notparked in direct sunlight but

was in the shadow ofthe terminal building. (Tr. 115, 

### ' 170). Heparked his vehicle on the right side ofthe aircraft and exitedwith his iPhone to photograph the aircraft. He noted frost forming onthe four outboard panels ofthe right wing and took

a photograph ofthe right wing at 7:48a.m. This is the last time Mr. Perkins sawfrost on N426SW prior to takeoff (Tr. 58) Pushback occurred at 7:52a.m. (Tr. 57, 128) and the aircraft immediately entered the sunlight. (Tr. 117) The pushback lasted 6 minutes (Tr. 119) as the aircraft was pushed backfar enough to allow for a left hand turn. (Tr. 406- 408, 411)(Ex. R-1) This deep, six minute pushback from gate E-1 is not unusual. (Tr. 131) The tug was detached from the aircraft and N426SW turned left and departed the gate area at 7:58a.m. and arrived at Spot 21 at 8:02 a.m., where it held until 8:04 a.m. Itthen taxied south towards runway 34L and took off at 8:08a.m. (Tr. 59) 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) Again, the last record Mr. Perkins has offrost beingpresent on the right wing ofN426SW was twentyminutes prior to takeoff, when the aircraft sat shielded from sunlight at E-1. 

### Mr. Perkins, who holds an ATP certificate and has operated the CRJ-200 in commercial service, testified that exposure to sunlight and increased temperature would work to sublimate frost. (Tr. 136)



### 2Under 14 C.P.R. § 13.224, the Administrator bears the burden ofproof

### in a civil penalty enforcement matter. In the Matter of Braden

# sBalloonsAloft, Inc., FAAOrderNo. 2004-6 (September 22, 2004), at 15. For the agencyto prevail, it must establishproofof the violations alleged by a preponderance ofthe reliable, probative, and substantial evidence. 14 C.P.R. §§ 13.223 and 13.224; Toyota Motor Sales, FAA OrderNo. 94-28 (September 30, 1994), at 11; see also In the Matter ofEnvirosolve, 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. FAA-2011-0782 (Aprill9, 2013), at 10. Itis not a violation for an aircraft to pushback from the gate withfrost on the wings. (Tr. 162) Indeed, it happens on a daily basis inthe winter at cold weather airports all overthe country. 

### It does not become a violationuntil the aircraft actually takes off with frost present onthe wings. (Tr. 164) 

### Mr. Perkins readily admits thathe has no idea whether the aircrafttook offwith frost present on its wings. (Tr. 149) Q. Infact you don't have any evidence after 7:48 inthe morning whether there's frost onthose 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? 

### A. That's right. Q. Didyou attempt to obtain other evidence ofthe presence offrost onthe wings other thanwhat you've presented here today? 

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

3B. 

### Mr. Perkins' recollection ofevents is unreliable and inconsistent. In addition to the gaping hole in the timeline, 

### Mr. Perkins describes an improbable taxi route for N426SW. Attrial, he traced a path onExhibit R-2 in greenink that routed the aircraft through an active ramp and against inboundtraffic to Spot 23. (Tr. 36-37, 107) This is highly unlikely, as Spot 23 is reservedfor inbound traffic. (Tr. 265, 313) Captain Thomas Gibbs, who was the pilot incommand ofFlight 7770, testified that he taxied to Spot 21, not 23. (Tr. 265) This was confirmed byhis First Officer, Dennis Burr, (Tr. 310)

as well as Daniel Anderson, a SkyWest pilot onboard Flight 7770 as a passenger. (Tr. 411) Uponreviewing the green line drawn byPerkins, Captain Gibbs denied the aircraft followed this path and noted that such a taxi route would lead into inbound traffic. (Tr. 267) 

### Mr. Perkins also recantedhis previously sworn deposition testimony about howlong the aircraft sat at Spot 23, shortening his estimate by several minutes. (Tr. 123-24) (Ex. R5, 61:12) Later, Perkins defendedhis decision not to stop the aircraftprior to takeoffbecause he believed it was heading to the deicing pads. (Tr. 35) He testified, as he watched the aircraft tum westtoward the runways, that it was "possible" that the aircraft was going to get deiced because there is a deicing pad onthe 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 deicing at the only spot in operation, Spot 9, located north of the airport. (Tr. 27-28, 75, 138) Perhaps the ·errors were due to inexperience. Mr. Perkins was only five days out of his deicing training classes, working alone. (Tr. 71-72) He did not use the camera issuedto



### 4

### himby the FAA, which was with 

### him inhis car, but chose instead to use his personal iPhone. (Tr. 78) He couldhave taken a picture that includedthe wing, frost and tail number together, butfailed to because "I wasn't outdoing surveillance to prepare for a court case." (Tr. 104) So the picture ofthe wing stands alone, does not identify the aircraft, and could be a photo ofa wingthat does notbelongto N426SW. (Tr. 86-87) C. SkyWest is entitled to the presumptionthat the missing photographic metadata is unfavorable to the Agency's case. OnNovember 28, 2012, SkyWest made a writtenrequest for the releasable portions ofthe FAA's evidentiary file incase no. 2012NM060025. OnNovember 29, 2012, Sky West received a file entitled "evidentiary section" from FAA legal assistant Dana Stephensonwhich contained PDF versions ofthe photographs that constitute Ex. A-3. The original electronic versions ofthe photographs, with all the attendant metadata, should have also beenproduced at thattime. On January 15, 2014, SkyWest tookthe deposition ofAaron Perkins wherein it was revealed that the electronic version ofphotographs existed on 

### Mr. Perkins' computer. On January 24,2014 Sky West made a written request for these original electronic photo files. (See Ex.!, attached hereto.) 

### Mr. Spitzer replied that the documents had been destroyed in the regular course ofbusiness. (Id.) SkyWest found this implausible, as 

### Mr. Perkins had testified to their existence a mere 9 days prior, and again wrote and asked for production of the files. Again, Mr. Spitzer claimedthe FAA conducted a thorough search, the files did not exist, and "ifwe had them intheir original electronic form, we would have provided them to you." (Id.) Then, on February 10,2014, 

### Mr. Perkins admitted on crossexamination at the hearing that the original electronic photo files were still in existence on his computer. (Tr. 83). He also claimed that Ex. A-3 had not been modified "in any way." 

### 5(Tr. 86) In fact, the image file hadbeenmodified or altered in some manner at 8:31p.m. on the date it was taken. (Tr. 453) Dennis Burr also testifiedthatExbihitA-3 is not the same picture that 

### Mr. Perkins showed him onDecember 7, 2011. (Tr. 340) The refusal to produce this key evidence is outrageous. SkyWest made three written and one verbal request for this evidenceprior to the hearing. The metadata surrounding an electronic photographtaken by an iPhone could establishthe date, time and location- down to the square foot- ofwhere the photographs were taken. We could also tell howthe photo files had been modified. Instead we are left with wing photos, detached from the aircraft, withno indicationto which aircraft the wing belongs. 

### Mr. Perkins did 40 minutes ofdeicing surveillance priorto arriving at E-1, so how can we verify the wing depicted inA-3 belongs to N426SW? Byhis testimony? This is hardly reliable inthe face ofhis confidently placingN426SW ininbound Spot 23, then recanting his deposition testimony about how long it was there, after claiming itmighthave been going for deicing west ofthe airport. No, the court should presume the withheld metadata would not be favorable to the

.FAA'scase. 

### See, e. g., 

### UnitedStates v. Roberson, 233 F.2d 517, 519 (5 1 h Cir. 1956)(failure to produce relevant documents "may raise a presumptionthat the evidence would notbe favorable"); 

### Tendler v. Jaffe, 203 F.2d 14, 19 (U.S.App.D.C. 1953) ("[T]he omissionby a party to produce relevant and important evidence ofwhich he has knowledge, and which is peculiarly withinhis control, raises the presumption that ifproduced the evidence would be unfavorable to his cause.") A presumption, ofcourse, is mandatory unless reasons affirmatively appear for not applying it. 

### See H. C. Black, Law Dictionary 1349 (4th ed. 1957). This presumption supports 

### Mr. Burr's contention thatA-3 is not the same photo he



### 6was shownby

### Mr. Perkins onDecember 7, 2011; thatA-3 has beenmodified since it existed on 

### Mr. Perkins' iPhone; and that location data would not support the claim that wingphotos were taken at gate E-1 or otherwise pertainto aircraft N426SW. D. The FAA's expert offered no admissible evidence that frost was present onN426SW's wings upontakeoff. Thomas Bond is a mechanical engineer who works for the FAA. He has vast experience inwind tunnels and studying the aerodynamic effect ofair on wings. (Tr. 185) He was offered 

### only as an expert "inthe subject ofaircraft icing and specifically the effects offrost on an aircraft's safety." (Tr. 189). This was an appropriate limitationbecause his education didnot include the study ofatmospheric sciences. (Tr. 190) Neither has he studied meteorology. (Tr. 190) His only ground icing experience relates to how deicing fluids work to remove frost- notthe actual formation or sublimation offrost. (Tr. 192) In fact, when he needs frost for his work, he manufactures it and adds itthe wing, thenhe tests how well the deicing fluids workto remove it. (Tr. 193) Hehas done no research on the natural sublimation offrost. (Tr. 194) As such, the FAAoffered a dazzling expert in an irrelevant field- no one disputes that frost on a wing has a negative impact on aerodynamics. The central question ofthe

case is whether frost was present on the wings ofN426SW at 8:08a.m. on December 7, 2011, andthe FAAwas content to have its expert hazard a guess. There is 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 spooled up. He did not calculate the density ofthe frost that could have formed onthe wings under the present atmospheric conditions. TheAgency offered no reliable, probative or substantial evidence to prove that frost was



### 7present at takeoff. They were comfortable with pure speculation, without foundation, as to whether frost was present. The court was correct to barthis unfounded opinion. (Tr. 221) 

### II. SkyWest Is Entitled To JudgmentAsA 

### Matter ofLaw. In light ofthe FAA's failure to offer reliable, probative and substantial evidence to meet its burden ofproof, SkyWest made a motion at the close ofthe Agency's case for a judgment as a matter oflaw. (Tr. 237) The Court declined, but stated it would reconsider the motion upon full review ofthe entirety ofthe case. (Tr. 242) The entirety ofthe case does nottake long to review: the FAA only calledtwo witnesses inits case-in-chief. Neither witness had a scintilla ofevidence to support the allegationthat frost was present on aircraft N426SW at takeoff. Mr. Perkins ran out of evidence twenty minutes prior to takeoffand Mr. Bondtestified about facts that are not in controversy
-- frost on an airplane's wings is bad. Mr. Perkins was an earnest but inexperienced inspector, working alone on likelyhis first deicing BPI, five days fresh from training. He admitted that he has "no idea" whether frost was present on takeoff. (Tr. 149) He believedthe crewwas unaware ofthe skiffof frost atpushback, but he allowed the aircraft to leave the gate and slowly pushbackwards, for six minutes, without signaling to the crewthere was any problem. (Tr. 105) The ground crewwas present but Perkins did notpoint out the frost to them. (Id.) He then follows the aircraft out to Spot 21, where there are no deicing operations, and watches it hold for another two minutes without taking actionto alert the crewto the dangerous condition oftheir ship. He watches Flight 7770 turn and slowly taxi outto the runway, for another six minutes, without giving notice to the alleged dangerous condition. There were 44 souls onboard that aircraft. (See Ex. A-7).



### 8There is one, and only one, explanation as to why he let that aircraft depart: 

### Mr. Perkins did not believe there was frost onthe wings. The wisp he observed inthe morning shade did not survive the sunlight, increased temperature, orheated fuel pumpedthrough the wings. 

### Mr. Perkins is both an airman and an FAAinspector -he could not, in good conscience, let that aircraft depart ifhe believed the wings were contaminated. He did not believe there was any frost remaining onthe wings. Any other explanation is too monstrous to consider. The only otherwitness, 

### Mr. Bond, hadbracing but irrelevant tales ofair disasters caused byfrost. When asked to opine about the present case, he had no data, mathematics

or a scientific analysis ofthe facts,just generalities drawn from his experience as an aerospace engmeer. TheAgency rested its case with evidence thatN426SW had a wisp ofdeveloping (or dissipating) frost roughly twenty minutes prior to takeoff. This violates no FAR. The court need not read further to reach its decision. Where the Complainant fails to prove the violation, the Complaintwill be dismissed. 

### In the Matter of SkyWestAirlines, Inc., Initial Decision, DocketNo. FAA-2011-0782 (April19, 2013), at 10.


### III. SkyWest Complied With its Operations Specifications. The FAA also claims that Sky West failed to follow its operations specifications. But 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 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 walkaround. (Tr. 292) Similarto Perkin's testimony, Burr reported it was sunny at pushback, withno clouds. (Tr. 317) 

### 9Neither Captain Gibbs nor

### Mr. Burr reported any indication ofdegraded performance upon takeoffor climb out ofSalt Lake City. (Tr. 269, 342) Coincidentally, Sky West Captain DanielAnderson was a passenger onFlight 7770 and was seated in 6B at 7:40 a.m. He was curious as to whether the flight wouldhave to stop for deicing, so he looked outhis window (there wasno passenger in 6A) and noted no contaminant onthe left wing. (Tr. 394) He had a clear view ofthe outboard portion ofthe wing. (Tr. 398) 

### Mr. Perkins admits the wing would have beenvisible to CaptainAnderson sitting in seat 6B and found 

### him credible whenhe reported no frost was present onthe left wing whenhe viewed it. (Tr. 162) Nothaving a death wish, 

### Mr. Anderson would have stopped the flight ifhe observed frost as depicted inEx. A-3. (Tr. 400) Neither would he personally operate a flight ifit had frost similar to that depicted inA-3. (Tr. 400)

IV. IfFrost Existed, ItWas GoneWell Prior To Takeoff. IfCaptain Anderson observes a clean left wing at 7:40a.m., how does Perkins observe frost onthis same wing at 7:41 a.m.? Althoughthe FAAventures no guess, it is possible underthe model offered by Sky West. Official weather data collected infive minute increments found that the temperature dropped from -7 C to -8 Cat 7:40a.m. (Tr. 508) The FAAhas no record ofthis temperature drop. The FAAis relying on weather datathat is only reported once perhour. They made no effort to gather more accurate data. 1 (Tr. 75)By 7:50a.m. the temperature had risento -7.2 C and at 8:00amthe temperature is backup to -7 C. While the FAAbelieves the temperature has not changed (Tr. 135) it has

1 The FAA relied on the "blue ribbon weather package" which did not provide enough data to predict frost deposition and sublimation. The data points were hourly, so that temperature data was only available at 7 and Sam. (Tr. 507) 10actually fallen a full degree centigrade to help induce frost, and then risenback to the temperature where no frost was forming when Burr andAnderson inspected the wings. (Tr. 508) Aiding the formation offrost was the addition ofcold fuel to the tanks around 7:40

a.m. (Tr. 514) SkyWest offered 

### Dr. Kevin Perry to help the court understandthe processes offrost formation and sublimation under these conditions. Dr. Perry has a Ph.D. in atmospheric sciences and is Chair ofthe Department ofAtmospheric Sciences atthe University ofUtah. The formation offrost is one ofthe processes under thepurview ofatmospheric science. (Tr. 488) He also holds a private pilot certificate and has taught courses in aviation meteorology to pilots. Dr. Perry conducted athorough literature searchregarding frost formation on airfoils and used these peer-reviewed articles andreports as the basis for his analysis. He obtained complete official data from Salt Lake 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 ofAir Quality site which is located 20 miles north ofthe airport atthe same longitude to get a measure ofthe strength ofthe sunlight that was available. He also downloaded data from the National Weather Service, which launches a balloon instrumenttwice daily from the Salt Lake International airport to

measure the atmospheric conditions above the surface. (Tr. 501) To determine whether frost was present at takeoff, we first needto determine how much frost couldhave formed on the wing prior to takeoff. To be conservative, Dr. Perry allowed for a twenty minute growthperiodbetween 7:30a.m. -7:50a.m., but Captain Andersonnoted no frost present at 7:40a.m. Ifthe growth period is cut in half, so is the



### 11frost density. (Tr. 528) Inhis conservative approach, Dr. Perry did not include other factors favorable to Sky West inhis analysis, including wing cambertoward the sunlight, the energy added to the wings byheated fud, the frost being patchy and limited onlyto a small portion ofthe wing, and the use ofaNASAmodel muchmore favorable to frost formation than the actual conditions present at SLC onDecember 7, 2011. Even so, he calculates, with maximum possible frost density, that the alleged frost would have sublimatedno laterthan 11 minutes into the 16 minute taxi. Itmight very well have been gone at 7:53 a.m., after heated fuel warmed the wings for a minute. Ofcourse it is the Agency's burdento showthe presence offrost at takeoff, not Sky West's to prove its absence. Andhere, the FAA offers nothing. Where is the Agency's data? Where is the analysis ofthe ambient air temperature, strength ofsunlight, reflectivity ofwing surface, rising fuel temperature and the length oftime the aircraft and frost was exposed to these conditions? Inrebuttal only, the FAA offered Dr. Roy Rasmussen, but he attemptedto calculate frost density from looking at aphotograph, which plainly shows bare spots within the scattered, inchoate frost. (Tr. 641) Contrary to the FAA's assertion, Dr. Perry did not "assume the frost was halfthe thickness ofa piece of paper." Agency Briefat 3. No, assumptions are the exclusive purview ofthe FAA's witnesses inthis case. Instead, Dr. Perry calculated the maximum frost density per a NASAmodel and arrived at 0.0005 grams per centimeter squared. (Tr. 527) This is the maximum amount offrost that could have formed under the most favorable conditions to

2 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 the engine oil. The fuel collects heat from the engine oil and returns to the wing tanks, warmer than when it left. (Tr. 294) Thus, the wing tanks on N426SW received heated fuel when the engines spooled up at pushback at 7:52a.m. (Tr. 281, 518, 524) and received a continuous flow ofheat to the wings for 16 minutes oftaxi time priorto takeoff. 12the Agency's case. (Tr. 534) This is not ahazarded guess ofdensity based offa photograph, it laDr. Rasmussen, but a calculation built on a mathematical foundation, which Rasmussen did not address or refute. The mathematical model used to calculate the amount offrost present on the wing atpushback was publishedby NASA. Neither the FAAnor 

### Dr. Rasmussen challengedthe credibility or use ofthe NASAfrost formation model. Thus, it remains the only quantitative measure ofthe maximum amount offrost that couldhave been present onthe upper surface ofthe wing at pushback. When asked about frost density under the NASA model, the FAA'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 alterthe heat balance equation (Tr. 656). Dr. Perry used the NASAmathematical model to calculate (not assume) the maximum amount offrost that couldhave formed on the upper surface ofthe wing inthe time that elapsed between the fueling ofthe aircraft andpushback. According to Figure 

### 17 ofthe NASAfrost formation model, the maximum amount offrost that couldhave formed under the observed meteorological conditions was 0.001 g cm"2• Dr. Rasmussen concurred with this assessment (Tr. 642). However, even this amount offrost is unreasonablyhigh because the NASAmodel was formulated for conditions that had 3.6 times more water vapor inthe atmosphere thanthe observed meteorological conditions. Dr. Rasmussen admitted under cross examination that this would further reduce the maximum amount of frost that could have formed onthe 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 on the wings ofthe aircraft before pushback is on the order of0.0005 g cm·2•

13The entire discussion ofhowthis thickness compares to a sheet ofpaper is irrelevant because it is the mass ofice, not its visual appearance, that determines howmuch energy is required for sublimationto occur. The only critique offered by Rasmussen that merits analysis is the contentionthat Dr. Perry overestimated the amount ofinfrared energy being absorbedbythe wing from the atmosphere. He contends this error changes the sign onthe energybalance model and that the wing actually continuedto cool all the way throughtakeoff. 3 Rasmussen claims thatthe 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
. Rasmussen claims Perry should not have used an emissivity equal to 1.0 and suggested an emissivity value of0.1 for the atmosphere, which would reduce the amount ofradiation absorbed from the atmosphere from 284.5 to 28.45 

### W m-2. However, the FAA ignores the fact that the same concept must be applied to the Ewterm as well. Rasmussen suggests using an emissivity of0.1 for polished aluminum (Tr. 646, 648). This reduces the amount ofradiation emittedbythe 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. This means that the wing will still undergo heating after pushback contrary to what is postulated inthe Agency'sbrief.

3 Recall that the Energy Balance Model Q**~** Ea1m 

### + S

- Ew

- H. Where Qis the net heating/cooling ofthe wing, Eatm is the amount of energy absorbed by the wing from the a1mosphere, S is the amount of energy from the sun absorbedby the wing, Ewis the amount ofenergy emitted from the wing to the atmosphere, and His the heat transferred between the wing surface and the fuel. (Exhibit R-4) 14The conservative nature ofDr. Perry's calculations ensures that, even withthis correctionto the heat energy balance equation, the conclusionthat the frost sublimated prior to take-offis valid. 

### V. Conclusion For these reasons, Your Honor should find that no regulatory violation occurred, and deny Complainant's request to impose a civil penalty. DATED this 6th day ofJune, 2014

Todd C. Emerson Attorney for SkyWestAirlines, Inc.



### 15

# EXHIBIT 1Todd Emerson From: Sent: To: Subject: Robert.Spitzer@faa.gov Friday; February 07, 2014 4:36 PM Todd Emerson RE: Case 0025

The FAA conducted a search for the original electronic versions of these files and we have not located them. The photographs exist in their printed form, or in the scanned version of the printed form exclusively. If we had them in their original electronic form, we would have provided them to you. Robert Spitzer Attorney FMANM-7 1601 Lind Ave. SW Renton, WA 98057 Tel: 425.227.1417 Fax: 425.227.1007

From: Todd Emerson <temerson@skvwest.com> ANM·007, Office of Regional Counsel To; Robert Spitzer/ANM/FAA@FAA, Date: 02/07/2014 03:26PM Subject: RE: Case 002·5

Rob, Upon reviewing Aaron Perkin's deposition, he states thatthe photographs were taken on his phone and emailed to his computer, where they were saved. See pages 33-34. It seems impossible thatthe electronic version ofthese photographs no longer exi>1s as copies of it passed through his phone, the FAA email server and his FAA computer. Even if inadvertently deleted, it is highly likely that the information still exists in the FAA information systems. It is also inadequate to claim that "these documents were destroyed in the regular course of business." These photographs are not casual victims ofa document retention program. They were taken to document an alleged violation and should have been preserved in anticipation of litigation. Evidence like this does not get "destroyed in the regular course of business", particularly when the photographs are included in the government's evidentiary file. Ifyou intend to introduce these photos at the hearing, please make every effort to produce the electronic version ofthese photographs so that they may be properly analyzed in advance. Sincerely, Todd Emerson DireGfor 1 1 C1overnment <:1nd Legal AffalrB**~!kyWest** Alrlines 0: 435,!:)34,3630 M: 4.:35.632:\387

NOTE: PrlvHeged/confidentia! information may be contalned in thls message and may be subject to legal privilege. Access to this e-rnaiL or attached files, by 1anyone other than the intended is unauthorized. Ifyou are not the Intended recipient (or responsible for delivery ofthe message to such person), you may not use, copy, distribute or deliver to anyone this message (or any part of Its contents ) or take any action in reliance on it. In such case, you should destroy this message, and notify us immediately. Ifyou have received this**e~mailln** error, please notify us immediately by e-mail or telephone and delete the**e~man** from any computer.

From: Robert.Spitzer@faa.gov [mailto:Robert.Spitzer@faa.gov] Sent: Friday, January 24, 2014 2:38 PM To: Todd Emerson Subject: Re: Case 0025 Todd, These documents were destroyed in the regular course of business. Robert Spitzer Attorney FAAANM-7 1601 Lind Ave. SW Renton, WA 98057 Tel: 425.227.1417 Fax: 425.227.1007

From· To: Date: Todd Emerson <temerson@skvwest.cam> ANM-007, Office of Regional Counsel

Robert Spitzer/ANM/FAA@FAA,

01/24/2014 01:37PM Subject Case 0025

Rob, Following up on our conversation from last week, please provide original electronic copies ofthe photos of aircraft N426SW that are part ofthe FAA's Items of Proof in this case. These electronic copies should contain the metadata for these photos. Also, please provide copies of Inspector Perkins' notes which he took on the morning of December 7 and were the basis for his written report. We are currently gathering information in response to your interrogatories and expect to reply on or before January 31. Thank you,

Todd Emerson Director 1Government and Legal Affairs SkyWest Ahilnes 0: 435.634.3530 iVl: 43(':i.632. 1387

NOTE: F'lrivi!ege\'1/confidential information may be contained in this Dnd may**bt~** subject to legal privilege. Access to this e-mail, or attached files, by anyone D1her· tloan the intended is unauthorized It' you are not lt1e recipient (or r·esponsible for c!e!ivery of the message to such person), you rnay not use. copy, distribute or deliver to anyone this message (or any part of itS czmtents) or take any action rn reHance on it In suc1·1 case, you should destroy this message, and notify us in1mediat.ely, Ifyou have received t·hls e-mail in error, ploase notify us immediately by e-mail ortelephone and delete the e-mail from any computer.

2

### CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 6'h day of June, 2014, a true and correct copy of the foregoing RESPONDENT'S POST TRIAL BRIEF was served as follows: FederalAviation Administration 800 IndependenceAvenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl00 Via Federal Express 

### The Honorable Richard C. Goodwin,Administrative LawJudge 

### Office ofHearings, M-20 1200 NewJerseyAvenue, S.E. East Building Ground Floor, Rm

### E12-320 Washington, D.C. 20590 Via E-mail & Federal Express 

### Robert Spitzer, Complainant:S Counsel 

### FAA Office ofRegional Counsel 1601 LindAve., SW Renton, Washington 98057 Via E-mail & Federal Express



### 16