Todd C. Emerson, #8175 

444 South River Road 

St. George, Utah, 84790 

Telephone: ( 435) 634-3530 

Facsimile: (435) 634-3505 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

RECEIVED 

JUN 0 9 2014 

HEARING DOCKET 

RESPONDENT'S POST TRIAL BRIEF 

In the Matter of: 

Sky West Airlines, Inc. 

FAA Case No. 2012NM060025 

DMS No.: FAA-2013-0292 

Honorable Richard C. Goodwin 

I. The Agency Has Not Met Its Burden Of Proof. 

A. There is no evidence the aircraft took off with frost on its wings. 

On the morning of December 7, 2011, FAA Inspector Aaron Perkins arrived at Gate 

E-1 at the Salt Lake International Airport, where SkyWest Flight No. 7770 was preparing 

to depart. The aircraft, a CRJ-200 regional jet, tail number N426SW, was crewed by 

Captain Thomas Gibbs and First Officer Dennis Burr. It was a cold morning and Mr. 

Perkins was performing an element performance inspection on Sky West's deicing 

operations. He believed he saw frost on the left wing at 7:41 a.m. (Tr. 57) and left his 

vehicle to more closely view the condition. He then returned to his car in order to move it 

out of the way of the departing aircraft. 

1 
Although the sun rose at 7:38a.m., Perkins 

testified the aircraft was not parked in direct sunlight but 

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

' 

170). He parked his vehicle on the right side of the 

aircraft and exited with his iPhone to photograph the 

aircraft. He noted frost forming on the four outboard panels of the right wing and took 

a photograph of the right wing at 7:48a.m. This is the last time Mr. Perkins saw frost 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 

back far 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. It then taxied south 

towards runway 34L and took off at 8:08a.m. (Tr. 59) 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) Again, the last record Mr. Perkins has of frost being present on the right 

wing of N426SW was twenty minutes 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) 

2 
Under 14 C.P.R. § 13.224, the Administrator bears the burden of proof in a civil 

penalty enforcement matter. In the Matter of Braden s Balloons Aloft, Inc., FAA Order No. 

2004-6 (September 22, 2004), at 15. For the agency to prevail, it must establish proof of 

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

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

(September 30, 1994), at 11; see also In the Matter ofEnvirosolve, 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. FAA-2011-0782 (Aprill9, 2013), at 10. 

It is not a violation for an aircraft to push back from the gate with frost on the 

wings. (Tr. 162) Indeed, it happens on a daily basis in the winter at cold weather airports 

all over the country. It does not become a violation until the aircraft actually takes off with 

frost present on the wings. (Tr. 164) Mr. Perkins readily admits that he has no idea 

whether the aircraft took off with frost present on its wings. (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? 

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) 

3 
B. Mr. Perkins' recollection of events is unreliable and inconsistent. 

In addition to the gaping hole in the timeline, Mr. Perkins describes an improbable 

taxi route for N426SW. At trial, he traced a path on Exhibit R-2 in green ink that routed 

the aircraft through an active ramp and against inbound traffic to Spot 23. (Tr. 36-37, 107) 

This is highly unlikely, as Spot 23 is reserved for inbound traffic. (Tr. 265, 313) Captain 

Thomas Gibbs, who was the pilot in command of Flight 7770, testified that he taxied to 

Spot 21, not 23. (Tr. 265) This was confirmed by his First Officer, Dennis Burr, (Tr. 310) 

as well as Daniel Anderson, a Sky West pilot onboard Flight 7770 as a passenger. (Tr. 411) 

Upon reviewing the green line drawn by Perkins, 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 recanted his previously sworn deposition testimony about how long 

the aircraft sat at Spot 23, shortening his estimate by several minutes. (Tr. 123-24) (Ex. R5, 61:12) 

Later, Perkins defended his decision not to stop the aircraft prior to takeoff 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 it was "possible" that the aircraft was going to 

get deiced 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 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 issued to 

4 
him by the FAA, which was with him in his car, but chose instead to use his personal 

iPhone. (Tr. 78) He could have taken a picture that included the wing, frost and tail 

number together, but failed to because "I wasn't out doing surveillance to prepare for a 

court case." (Tr. 104) So the picture of the wing stands alone, does not identify the 

aircraft, and could be a photo of a wing that does not belong to N426SW. (Tr. 86-87) 

C. SkyWest is entitled to the presumption that the missing photographic 

metadata is unfavorable to the Agency's case. 

On November 28, 2012, SkyWest made a written request for the releasable portions 

of the FAA's evidentiary file in case no. 2012NM060025. On November 29, 2012, 

Sky West received a file entitled "evidentiary section" from FAA legal assistant Dana 

Stephenson which contained PDF versions of the photographs that constitute Ex. A-3. The 

original electronic versions of the photographs, with all the attendant metadata, should 

have also been produced at that time. 

On January 15, 2014, Sky West took the deposition of Aaron Perkins wherein it was 

revealed that the electronic version of photographs 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 of business. (Id.) Sky West 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 claimed the FAA conducted a thorough search, the files did 

not exist, and "if we had them in their 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 had been modified or altered in some manner at 8:31p.m. on 

the date it was taken. (Tr. 453) Dennis Burr also testified that Exbihit A-3 is not the same 

picture that Mr. Perkins showed him on December 7, 2011. (Tr. 340) 

The refusal to produce this key evidence is outrageous. Sky West made three 

written and one verbal request for this evidence prior to the hearing. The metadata 

surrounding an electronic photograph taken by an iPhone could establish the date, time and 

location- down to the square foot- of where the photographs were taken. We could also 

tell how the photo files had been modified. Instead we are left with wing photos, detached 

from the aircraft, with no indication to which aircraft the wing belongs. Mr. Perkins did 40 

minutes of deicing surveillance prior to arriving at E-1, so how can we verify the wing 

depicted in A-3 belongs to N426SW? By his testimony? This is hardly reliable in the face 

of his confidently placing N426SW in inbound Spot 23, then recanting his deposition 

testimony about how long it was there, after claiming it might have been going for deicing 

west of the airport. 

No, the court should presume the withheld metadata would not be favorable to the 

. FAA'scase. See, e. g., United States v. Roberson, 233 F.2d 517, 519 (51

h Cir. 1956)(failure 

to produce relevant documents "may raise a presumption that the evidence would not be 

favorable"); Tendler v. 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.") A presumption, of course, 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 

6 
was shown by Mr. Perkins on December 7, 2011; thatA-3 has been modified since it 

existed on Mr. Perkins' iPhone; and that location data would not support the claim that 

wing photos were taken at gate E-1 or otherwise pertain to aircraft N426SW. 

D. The FAA's expert offered no admissible evidence that frost was present 

on N426SW's wings upon takeoff. 

Thomas Bond is a mechanical engineer who works for the FAA. He has vast 

experience in wind tunnels and studying the aerodynamic effect of air on wings. (Tr. 185) 

He 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 an 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 of frost. (Tr. 194) 

As such, the FAA offered a dazzling expert in an irrelevant field- no one disputes 

that frost on a wing has a negative impact on aerodynamics. The central question of the 

case is whether frost was present on the wings ofN426SW at 8:08a.m. on December 7, 

2011, and the FAA was 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 of heat 

added to the wing by the fuel after the engines spooled up. He did not calculate the density 

of the frost that could have formed on the wings under the present atmospheric conditions. 

The Agency offered no reliable, probative or substantial evidence to prove that frost was 

7 
present at takeoff. They were comfortable with pure speculation, without foundation, as to 

whether frost was present. The court was correct to bar this unfounded opinion. (Tr. 221) 

II. Sky West Is Entitled To Judgment As A Matter of Law. 

In light of the FAA's failure to offer reliable, probative and substantial evidence to 

meet its burden of proof, Sky West made a motion at the close of the Agency's case for a 

judgment as a matter of law. (Tr. 237) The Court declined, but stated it would reconsider 

the motion upon full review of the entirety of the case. (Tr. 242) 

The entirety of the case does not take long to review: the FAA only called two 

witnesses in its case-in-chief. Neither witness had a scintilla of evidence to support the 

allegation that frost was present on aircraft N426SW at takeoff. Mr. Perkins ran out of 

evidence twenty minutes prior to takeoff and Mr. Bond testified 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 likely his 

first deicing BPI, five days fresh from training. He admitted that he has "no idea" whether 

frost was present on takeoff. (Tr. 149) He believed the crew was unaware of the skiff of 

frost at pushback, but he allowed the aircraft to leave the gate and slowly push backwards, 

for six minutes, without signaling to the crew there was any problem. (Tr. 1 05) The 

ground crew was present but Perkins did not point out the frost to them. (I d.) 

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 action to alert the crew to the 

dangerous condition of their ship. He watches Flight 7770 turn and slowly taxi out to the 

runway, for another six minutes, without giving notice to the alleged dangerous condition. 

There were 44 souls on board that aircraft. (See Ex. A-7). 

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

Perkins did not believe there was frost on the wings. The wisp he observed in the morning 

shade did not survive the sunlight, increased temperature, or heated fuel pumped through 

the wings. Mr. Perkins is both an airman and an FAA inspector -he could not, in good 

conscience, let that aircraft depart if he believed the wings were contaminated. He did not 

believe there was any frost remaining on the wings. Any other explanation is too 

monstrous to consider. 

The only other witness, Mr. Bond, had bracing but irrelevant tales of air disasters 

caused by frost. When asked to opine about the present case, he had no data, mathematics 

or a scientific analysis of the facts, just generalities drawn from his experience as an 

aerospace engmeer. 

The Agency rested its case with evidence that N426SW had a wisp of developing 

(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 Complaint will be dismissed. In the Matter of Sky West Airlines, Inc., Initial 

Decision, Docket No. 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 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 in A-3 and detected a clean, dry wing. (Tr. 315) 

There was sufficient daylight for Burr to perform the walkaround. (Tr. 292) Similar to 

Perkin's testimony, Burr reported it was sunny at pushback, with no clouds. (Tr. 317) 

9 
Neither Captain Gibbs nor Mr. Burr reported any indication of degraded performance upon 

takeoff or climb out of Salt Lake City. (Tr. 269, 342) 

Coincidentally, Sky West Captain Daniel Anderson was a passenger on Flight 7770 

and was seated in 6B at 7:40 a.m. 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. (Tr. 394) He had a clear view of the outboard portion of the 

wing. (Tr. 398) Mr. Perkins admits the wing would have been visible to Captain 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) Not having a death wish, Mr. Anderson would have 

stopped the flight if he observed frost as depicted in Ex. A-3. (Tr. 400) Neither would he 

personally operate a flight if it had frost similar to that depicted inA-3. (Tr. 400) 

IV. If Frost Existed, It Was Gone Well Prior To Takeoff. 

If Captain Anderson observes a clean left wing at 7:40a.m., how does Perkins 

observe frost on this same wing at 7:41 a.m.? Although the FAA ventures no guess, it is 

possible under the model offered by Sky West. Official weather data collected in five 

minute increments found that the temperature dropped from -7 C to -8 Cat 7:40a.m. (Tr. 

508) The FAA has no record of this temperature drop. The FAA is relying on weather 

data that is only reported once per hour. They made no effort to gather more accurate data. 1 

(Tr. 75) 

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

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

10 
actually fallen a full degree centigrade to help induce frost, and then risen back to the 

temperature where no frost was forming when Burr and Anderson inspected the wings. (Tr. 

508) Aiding the formation of frost was the addition of cold fuel to the tanks around 7:40 

a.m. (Tr. 514) 

Sky West offered Dr. Kevin Perry to help the court understand the processes of frost 

formation and sublimation under these conditions. Dr. Perry has a Ph.D. in atmospheric 

sciences and is Chair ofthe 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 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 

sunlight that was available. He also downloaded data from the National Weather Service, 

which launches a balloon instrument twice 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 need to determine how 

much frost could have formed on the wing prior to takeoff. To be conservative, Dr. Perry 

allowed for a twenty minute growth period between 7:30a.m. -7:50a.m., but Captain 

Anderson noted no frost present at 7:40a.m. If the growth period is cut in half, so is the 

11 
frost density. (Tr. 528) In his conservative approach, Dr. Perry did not include other factors 

favorable to Sky West in his analysis, including wing camber toward the sunlight, the 

energy added to the wings by heated fud, the frost being patchy and limited only to a 

small portion of the wing, and the use of a NASA model much more favorable to frost 

formation than the actual conditions present at SLC on December 7, 2011. Even so, he 

calculates, with maximum possible frost density, that the alleged frost would have 

sublimated no later than 11 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 a minute. 

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

Sky West's to prove its absence. And here, the FAA offers nothing. Where is the Agency's 

data? Where is the 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 FAA 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) Contrary to 

the FAA's assertion, Dr. Perry did not "assume the frost was half the thickness of a piece of 

paper." Agency Brief at 3. No, assumptions are the exclusive purview of the FAA's 

witnesses in this case. Instead, Dr. Perry calculated the maximum frost density per a 

NASA model and arrived at 0.0005 grams per centimeter squared. (Tr. 527) This is the 

maximum amount of frost 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 of heat to the wings for 16 minutes 

of taxi time prior to takeoff. 

12 
the Agency's case. (Tr. 534) This is not a hazarded guess of density based off a 

photograph, it la Dr. Rasmussen, but a calculation built on a mathematical foundation, 

which Rasmussen did not address or refute. 

The mathematical model used to calculate the amount of frost present on the wing 

at pushback was published by NASA. Neither the FAA nor Dr. Rasmussen challenged the 

credibility or use of the 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 pushback. When asked about frost density under the NASA 

model, the FAA'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). 

Dr. Perry used the NASA mathematical model to calculate (not assume) the 

maximum amount of frost that could have formed on the upper surface of the wing in the 

time that elapsed between the fueling of the aircraft and pushback. According to Figure 17 

of the NASA frost formation model, the maximum amount 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-

655). Thus, both expert witnesses agree that the maximum amount of ice that could have 

accumulated on the wings of the aircraft before pushback is on the order of0.0005 g cm·

2

• 

13 
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, that determines how much energy is 

required for sublimation to occur. 

The only critique offered by Rasmussen that merits analysis is the contention that 

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

the atmosphere. He contends this error changes the sign on the energy balance model and 

that the wing actually continued to cool all the way through takeoff.3 Rasmussen 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 . Rasmussen claims Perry should not have used an emissivity equal to 

1.0 and 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 FAA ignores the fact that the same concept must be applied to the 

Ew term as well. Rasmussen suggests using an emissivity of 0.1 for polished aluminum 

(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. This means that the wing will still undergo heating after 

pushback contrary to what is postulated in the Agency's brief. 

3 Recall that the Energy Balance Model Q ~ Ea1m + S - Ew - H. Where Q is the net heating/cooling of the 

wing, Eatm is the amount of energy absorbed by the wing from the a1mosphere, 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 

His the heat transferred between the wing surface and the fuel. (Exhibit R-4) 

14 
The conservative nature of Dr. Perry's 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. 

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 of June, 2014 

Todd C. Emerson 

Attorney for SkyWestAirlines, Inc. 

15 
EXHIBIT 1 
Todd 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 that the photographs were taken on his phone and emailed to his computer, 

where they were saved. See pages 33-34. It seems impossible that the electronic version of these 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 of a 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. 

If you intend to introduce these photos at the hearing, please make every effort to produce the electronic version of these 

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 

1 
anyone other than the intended is unauthorized. If you are not the Intended recipient (or responsible for delivery of the 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. If you 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 of the photos of aircraft N426SW that are 

part of the FAA's Items of Proof in this case. These electronic copies should contain the meta data 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 1 Government 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, If you have received t·hls e-mail in error, ploase notify us immediately by e-mail or telephone 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: 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 00 

Via Federal Express 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office ofHearings, M-20 

1200 New Jersey Avenue, 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 of Regional Counsel 

1601 Lind Ave., SW 

Renton, Washington 98057 

Via E-mail & Federal Express 

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