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:l.S 

Kyle E. Lomazow 

FAA Office of Regional Counsel 

1601 Lind Ave., SW 

Renton, Washington. 98057 

Telephone: (425) 227-1847 

Facsimile: (425) 227~1007 

UNITED STATES OF AMERICA 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

i: L~O 

16 In the Matter of DMS NO. FAA-2011-0782 17 

1 a SKYWEST AIRLINES, INC. FAA Case No. 20 l ONM060081 

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5:1. 

COMPLAINANT'S BRIEF 

PROCEDURALSU~Y 

On August 8, 2011. the Complainant issued a Complaint to which Respon.de:ot filed a 

timely Answer. In its Answer, Respondent admitted to Section I and Section II (1)~(6), and (10)-

(1.1). 1 Respondent denied tlte factual allegations in Section II (7)- (9), and (16) as well as raised 

two affirmative defenses. On May 31. 2012. the Administrative Law Judge (ALJ) set the hearing 

in this matter for October 1, 2012 and it was held on October 1 and October 2~ 20 12~ 

s 2 '· See Answer 

53 

COM~LhiN~T'S H~ING BaiEF 

SKYWEST AIRLINES - FDMS NO FAA-2011-0792 

FA'A. C;~.sE )No, f!O~.Or;.TM0600a;l. 

P~ge 1 of 1.6 

KYLE E , LOMAZOW, FAA ATTORNEY 

TEL: (425) 227-18471 FAX: (4:25) 227-1007 
01/10/2013 11:20 4252271007 ANM7 PAGE 03/17 

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STATEMENT OFF ACTS 

Sky West Airlines is the holder of Scheduled Air Carrier Certificate No. SWIAO 11 A and 

conducts its operations per Federal Aviation Regttlation Part 121.2 Its Operations Spedfica1.ions 

(OpSpecs) require it to :r.:nai.:otabJ its aircraft in. accordance with its Continuous Airworthiness 

Maintenance Program (CAMP), which includes the provisions of its General Maintenance 

Manual (GMM)? The Sky West GMM includes by reference a Bombardier, CL-600-2B 19 

Maintenance and Inspection Program and the Bombardier CL-600-2B 19 Maintenance Manual.4 

The SkyWest CAMP incorporates by reference Sky West Standard Practice 8600.s Sky West 

OpSpec D085 authorizes it to u..~e N948SW, a Bombardier CL~600-2Bl9 civil aircraft, in the 

conduct of its Part 121 operations.6 

On May 30,2010, the Captain ofN948SW aborted takeoffatthe San F:r.ao.cisco 

International Airport after fue flight crew received a right air-conditioni.ng system pack high. 

pressure roessage.

7 This message indicated to the pilot that the aircraft did not have the ability to 

regulate high input pressure iuto the a.ir~conditioning packs. 1bis aircraft has two airuconditioning 

packs (a. left and a right pack) and in tl1is h1stan.ce, the left air.-conditionjng pack had already been 

deferred~ causing the pilot to abort the takeoff entirely.8 This was a mechanicai irregularity that 

41 required the pilot to write that mechanical irregularity up i.n the aircraft maintenance log, which 

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46 2 See Complaint II.l and Answer 

4 7 3 See Comple~.int ll.2, Answer and Exhibit C" l. 

4 s ~ See Complaint 11.3 and Answer. 

49 ~ See Complaint T.I.4 aud. Answer. 

50 15 See Complaint II.5 and Answer. 

s J. 7 See Complaint II.6 and. Answer 

52 s Tr. At 29, lines 5-22 and Tr. At 30, lines 5-19. 

53 

CoMPLJ<:tN.ll.Nl'' .<: Hll:J<'R!NG E:~tn:v 

SKYWEST AIRLINES - FDMS NO FAA•:2011•0792 

FAA C~<sl;l .~o. :'.OlON'MOr5008J. 

Page 2 of 16 TSJ • .: ( 425) 227-184 7; FAX: ( 425) 227·1007 
01/10/2013 11:20 4252271007 ANM7 PAGE 04/17 

1 the pilot did in fact do.9 A Sky West maintenance worker then used the Pilot's Quick Reference 

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Handbook (QRH) to address this error. No error message was received when performing the 

static throttle run because the QRH procedure does not develop pressure high enough to test the 

system. The mechanic signed off on the Aircraft Maintenance Log, giving the aircraft an 

airworthiness release and approval for return to service. 10 The QRH is the manual to be used by a 

pilot in flight when an. abnonnal procedure occurs and is located in the cockpit of the aircraft. 

However, the QRH is not part ofSk.yWest's CAMP nor their GMM and is not designed; intended 

or authorized to be used Jn lieu of sanctioned maintenance procedures. 11 Operations 

Specifications issued to Sky West do :n.ot authorize 1he use of the QRH to perform m.aintenarice 

tasks. 

After N948SW was released it flew eight cycles between May 30, 2010 and June 1, 2010 

before teiro.inating at the San Francisco International Airport on June 1, 2010, due to the flight 

crew receiving a right air·conditioning system pack high pressure message.U 

I. 

ARGUMENT 

SKYWEST VIOLATED ITS CAMP BY USING THE PILOt QUICK 

REFERENCE :HANDBOOK TO PERFORM MAINTENANCE. 

Sky West attempted to complicate the facts at the hearing aJJ.d m.ake it seem like this is a 

much more complicated case than it actually is. What it comes dovvn to is that Sky West used a 

pilot's in. flight procedure in lieu of authorized and approp1iate maintenauce manual procedures. 

48 9 Tr. at 30·31, lines 20-22, l-3 and Exhibit C"2. 

4 9 10 Tr. at 31, lines 7 - 20; Tr. at 32, lines 1 - 15, and Exhibit c-z so 11 Tr. at 32, lines 16-22; Tr. at 33, lin.es 1~22 and Exhibit C.l 

Sl J.

2 Complaint II. 10 and. Answer and Respondent's Response to Complainant's Injtial Pisco very Requests, Request 

52 for Admissions No.6 

T<;YI,;r.: m • t..QM1>-:IOW, FAA ATTORNEY 

FAA C1\.s:t: No. 2010NM0600B1 

Page 3 of ;1.6 TEL: (425)227~1847; FA."{: (425}227-1007 
01/10/2013 11:20 4252271007 ANM7 PAGE 05/17 

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Sky West 1hen approved the aircraft for return to service, dispatched and operated 1he aircraft in 

au unairworthy condition. 

Sky West has admitted the QRH: was not part of its CAMP during the incident in 

8 question. 13 However, Sky West argued that because the QRH was authored by Bombardier the 

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QRH is ~'manufacturer's data'' and could therefore be used by their maintenance workers to 

correct the right air-conditioning pack error message. 14 However, as Aviation Safety Inspector 

Skeeter Gelui.n.g testified., the QRH is a flight operations roanna.l and is manufa.ctur.er's data for 

flight. 15 Sky West is basica.lly argub::tg that any document generated by a manufacwrer, even one 

that is generated solely for flight operatjons, is appropriate for maintenance. That is no different 

than arguing that an airplane brochure written by the roan.uiacturcr is appropriate for 

maintenance. Aircraft manufacturers, such as Bombardier, are required to develop both 

maintenance procedures (instructions for conti.n:u.ed airworthiness) and flight operations 

procedures. While both sets of information and instructions are critical, they are n.ot 

interchangeable .in that the aircraft cannot be ""operated'' according to maintenance procedures~ 

nor maintained in accordance with flight operation.s procedures. Passengers on commercial 

airliners deserve to travel with the knowledge that the Ai.rlin.es are actually using maintenance 

manuals to correct maintenance issues. 

Principle Operations Inspector Andrew Ayers, whose current duties in:clude general 

oversight of all the operational units of SkyW est, testifi.ed that the QRH is not to be used for 

maintenance purj,oses. Mr. Ayers indicated that the QRH is intended to allow the airplane to 

so 13 See Respondent's Response to Cornplainant;s lnitial Discovery Requests, Request for Admission No.3. 

51 24 Tr.. at l 02, line 3-20. 

52 15 Tr. at 102, lines 3 - 20, Exhibit C-1 0 

53 

COMPLAINANT'S H~~RrN~ BRLEF 

SK'lWF.JS'T Ar7<LtN1l!S- FDMS No FM-:'ZOll-0792 

FAA CAsE No. 2010NMOG00$1 

Page 4 of 1G TEL: (425) 227-1847; li'AX1 (445) 227-1007 
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continue flight until the conclusion ofthe flight when the abnormalities can be addressed.16 As 

Mr. Ayer's testified, "the Quick Refer.en.ce Handbook, as I said. is an operational document. It is 

not meant for corrective action. of mechanical irregularities." 17 

The word ~<Quick'' i,n the "Quick Reference Handbook'' is meant to allow a pilot to 

quickly address abnormalities in flight. It is not meant to allow Sky West to "quickly" get a plane 

off the gate for on-time departure purposes. We note with a degree of emphasis that the correct 

roaintena:r.J.ce procedure is significantly more detailed and time consuming than the mere use of a 

QRH flight operations procedure. 

. . . . . . . . . . ~. ' •.. ' ·:A 

II. SKYWEST IS NOT FREE TO DEVELOP NEW METHODS AND 

TECHNIQUES ON THE FLY 

During the hearing Sky West argued that the discrepancy at issue here was a "known . . 

condition" and that therefore SkyWest.maintenance workers were free to develop a method, • • " • ' • 'h'\ 

' 

2s technique, or pr:wtice to return the aircraft to its original or. proper!~ altered,con~,itiqu as per ... 2.9 ~ ' .. ~· t ' . 

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section l.A(2) of tl1eGMM. 18 That argument lacks merit because there ar.e many. m:ainte~c.e, 

issues which are "lo:J.Own conditions," but that does not alleviate an air carrier from having to . -(.. '·.• . . . ·,. '' .. ;•' . ' :. 

follqw its CAMP. There is no reference in SkyWest's CAMP or. GMM which says the 

maintenance program '"does not apply if condition known to SkyWest."19 Fur.thennore, there is 

nothing in the GMM that refers to the error message received in tltis case as a "known 

condition."20 More important) Sky West's pilot did not believe this ~as a know11 co~dition when 

he decided to abort the flight and Write it up as a mechanical irregularity requirlrtg maintenance. 

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4B 16 Tr. at 138, lines 8-12 and Tr. !'It 139, lines 7-22. 

49 l 7 · Tr. at 140-l4l, Hoes 21 -2. 

5o J 6 T.r. at 83, lines 12- 15. Tr. at 130, lines 6 - 11, page 4 of 19 of Exhibit C.l. 

51 19 . Sec Exhibit C-1. , 

s2 ~o Tr. at 82, 

53 

COMPLAINANT'S HEARING ~R"F.? 

SKYWEST AIRLINES - :f'PMS NO FAA~201l-0782 

FAA CASE NO. 2010NM060081 

Pa.ge 5 o:e l6 TET.,; (425) 227"1847; FAX: (425) 227-1007 
01/10/2013 11:20 4252271007 ANM7 PAGE 07/17 

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Sky West's argument that their mechanics can develop their ovvn method, technique or 

pra.ctice to return the compo:o.ent or aircraft to its original or properly altered condition also lacks 

credibility. What SkyWest is basically arguing is, "we hire sm.ar.t people and they know what they 

are doing: Therefore, there is no need for us to follow our own CAlvfP every time." It goes 

without saying that an air carrier cannot bypass their own CAMP or GMM because they happen 

to hire qualified mechanics. Hiring quaHfied tnecb.au.ics is what is to be expected fTom any aix 

carrier. SkyWest is fTee to develop new methods or techniques when. it com.es to :returning an 

aircraft to its o:r.igi.nal or properly altered condition, but any new technique still has to be 

acceptable to the FAA aud implemented in its CAMP. Otherwise SkyWest could simply pick and 

choose when to follow their CAMP. In the final analysis, Sky West alone is~esponsible for the 

airwoithiness of their aircraft. Acceptance ofthis responsibility i.s the core objecti~e of 

maintenance program procedures. To delegate this responsibility to line~ro.~chanics on. a flightby-flight basis is unacceptable from both a practical perspective as well as a safety management 

perspective. 

Maintenance procedures are defined in company maintenance m.au~tals; which are linked 

to Operations Specifications. The procedures and processes contained therein constitute the 

FAA's agreement with Sky West regarding how tb.ei.r aircraft will be maintained. Sky West 'is· free 

to defme as many altem~te proc~dures as they like, bu.t they cannot have a policy tb.a.t allows. or 

directs mechanics to make stuff up on the fly with the objective of on-time departures. 

III. SKYWEST'S CAMP DOES ADDRESS THE MECHANICAL 

IRREGULARITY AT ISSUE IN THIS CASE 

COMP~rNANT 1 S 'foilill<lUI:'G SRIEF 

SI<YWEST AIRLINES ~ FDMS No FAA·20H-0782 

FAA CASE No. 2010NM06008;1, 

Page 6 of ~6 

T<YLE E, LOMAZOW, FAA ATrO!lN~'t 

TEL: ( 425) 227•184,?; li'f'>X; ( 4.45) 227-10 07 
01/10/2013 11:20 4252271007 ANM7 PAGE 08/17 

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Sky West argued 1hat there are some occasions wheJJ. a :mechallic n.eeds to operate on a 

system in the aircraft and cannot find it in the CAMP the mechanic could then refer to an 

operations rn.alJ.Ual on how to repair the problem.2J This argument Jacks credibility for three 

reasons. One, an air carrier is required to maintain their aircraft in accordance with thel.r CAMP 

an.d their CAMP should address what to do should a problem rise that is not contained in the 

maintenance manual.22 Two, as Inspector Gehring testified, the Fault Isolation Manual and the 

Aircraft Maintenance Manual, both of which are part of Sky West's Camp, clearly address how to 

correct and test tbe systems following the error message received in this case. 

23 Thxee~ the QRH, 

as stated.ab~ve, is designed t6 allow the aii·plane to contin:ue flJ.ght until its conclus'ion whert the 

22 • m.echau.icai irregularity can be ~ddressed and is not meant to be used for.cori:ecti~e· action of 

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CAMP contained the answer. Sky West used the QRH because ti:r.n~ is moriey ~~d .they w~ted to 

~1 . . . 'get this airctaffback into the air as quickly as possible. ~f 

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' . . · IV. . . THE F AlLURE TO FOLLOW THEIR. CA1\1P RESUL TEiirnN94~SViBEINd 

RELEASED IN AN UNAlRWORTHY CONDITION 

Sky West r~leased N948SW after their mechanic signed off the Aircraft Maintenan~e Log 

after using the QR.l:l to address the right air-conditioning pack error message. 25 SkyWest then 

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proceeded to operate N948SW on eight flights with N948SW in an unairworthy condition due to 

:>.J. Tr at 106, lin.es 6-11 22 Tr~ at l06s lines 0-22, Tr. at 107, lines 1-22. -::-,-· 23 Tr. at 37, lines !.5- 22; Tr. at 38, lines l· 1.9; Tr. at 39, lines l - 1 0; Tr. at 40, lines 1. ~ 16; Exhibit C-3 and 

5o Exl1ibit C.-4. . . 

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2.5 Tr. at,3.2, lines 2 ~ 22, Exhibit 9·2 arid Exhibit C- 5. 

COI'Il'LAlN.M"t' s HI!:AI'!.iNG. BlUE//' 

SK'!WE:S'l.' AIRLINES - FDMS No FAA-2011-0782 

FAA CAse No. 2010NM0600BJ. 

Page 7 of J.6 

. '') ' ... 

X'lLE ll, LOMAZOW, FAA ATTORl'lE'l 

'l'EL: (4.25) 227•1847; FAX! (425) 227~1007 
01/10/2013 11:20 4252271007 ANM7 PAGE 0'3/17 

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the aircraft not meeting type design (a failure in the air~cond.itioning pack) and a required 

inspection that was not accomplished to 4etennine if a condition existed that could have been 

potentially dangerous?6 In fact, the very next day, a Sky West pilot aborted takeoff agai.n whi.le 

·operating N948S W. This time Sky West replaced au integral component of the air-conditioning 

pack in accordan.ce with their CAMP_ 

The Administrator has previously ruled that if a legally required inspection has not been 

performed the aircraft cannot be considered airworthy. In the Matter ofUSAIR, INC., 1296 'WL 

509037, Docket No. CP94EA0045 at 6. In the USAir case, the Respondent failed to perform a 

high energy stop inspection in accordance with the Boeing 767 Maintenance Manual. Jd at 1. 

USA.ir then operated the aircraft on eight domestic flights b~tween the- tiine ofihe fir.st aborted 

takeoff and when it was aborted again eight flights latcr.Jd at 2. The DOT rejected US Air's 

argument that without damage to the plane the FAA could not prove the· aircraft was u~irworthy 

by stating: 

"By failing to perform the high energy stop inspection when the need aTose, 

as caJ]ed for by the Boeing 767 maintenance manual, USAir failed to perform the 

maintenance required by Part 43. As a result, the aircraft's airworthiness certificate was 

not in effect for the eight flights at issue here." ld at 6. 

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4,1 Furthermore, the Administrator stated that an aircraft that has flown without required inspections 

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is not airw~rthy 'Within the meaning oftb.e Federal Aviation Act simply because it is later found 

to be undamaged. !d. "Airworthiness is not synonymous with fly ability." !d. Just as in this case, 

by failing to use their GMM to properly maintain the right air-conditioning pack, Sky West failed 

52 26 Tr at 57, lines 14- 21; Tr. at 66, lines 12- 22; Tr. at 67, li.nes 1 -7. 

S3 

COM:!'LIUM.IIm'' s H:EAAINO Btt~Sl" 

.S~'tW!!:$'1' A:r:ru .. n!IM - FDMS No FAA-201.1-0782 

FAA CII.SE No, 2010NM060081 

Page S of 16 

KYLE .It, LOMllU>W 1 l!'AA AITORNEY 

TEL: (4.2S) 227-1$47; FAX; (425) 2.27-'l.007 
01/10/2013 11:20 4252271007 ANM7 PAGE 10/17 

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to perform the maintenance required by Part 43. As a resul4 the aircraft'$ airworthiness 

certificate was not in effect for the eight flight cycles at issue here. 

In. regards to safety, as mentioned above, the left airNconditioning pack was already 

deferred and therefore not functioning when. the pilot received a :message indicating that the right 

air-conditioning pack was not functioning properly. When the right air-conditioning pack 

malfunctioned the safety of the aircraft became unknown and that is an unknown safety issue on 

15 a passenger carrying flight, which is simply unacceptable. 

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v. THE PROPOSED SANCTION IS SUPPORTED BY THE FACTS AND THE 

ADMINISTRATOR'S SANCTION GUIDANCE SET FOURTH IN FAA .. 

ORDER 2150.3B. . . 

While the maximum statutory civil penalty for violations of the provisions of 14 C.F .R. 

Parts 1 i9 and 121 is $27j500'per occtirrence27 and per flight,2

R the Adniinistrat6ihtis'jSrovided 

published''policy guidance for Agency employees to follow when determining ~n approp:d'ate 

civil penaltY for a given case.~9 This guidance is contained in FAA Order 2150.3B, in particular 

Chapter 7 and Appendix B. The guidelines aid Complainant's penalty determination through a 

Sanction Guidance Matrix. The Matrix sets out specific penalty ranges for each type of violation 

and provides a range within whi~h an appropriate sanction should be soug11t. Complainant's 

sanction determination nevertheless does not merely reflect a fixed mathematical computation 

1U but considers a multitude of factors set for in Chapter 7, paragraph 4. Using these factors, the 

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45 27 49 U.S.C. 46301 (a)(J.). See also FAA Order 2150.3:S, Chap 7, para. 3 

46 28 See 49 U.S.C. 4o30I(a)(2). 

4 7 29 If Respondent attempts to claim that some other sanction is appropriate in this case, t js well-settled tbat the 

4 B FAA's· determination to institute a civil pen.alty proceeding rather than employini some lesser fomJ. of sauction (such 

49 as a letter ofcorrecti.on) is a:r.:o.atter committed to the Agency's sound discretion. See In the matter o.fq((Shore Air, 

50 F.AA. Order 2002-7, 2002 WL 1042304 (Apri115, 2002) and In the matter ofWyatt, FAA Order 92-73, 1992 WL 

s1 733220 (Dec. 21, 1992). See alsoln the matter ojEoston-Mai12e Airways, FAA No. CP08S00002, 2008 WL 

52 3485802 (August 8, 2008)(initial decision). 

53 

COMPLAINANT'S l'!FoAR;tN(; B'IUEllf 

SKYWElST AJ:RLINEl.S ~ FDMS No FAA-2011-0782 

FAA. CAsE: No. 2010NM060081 

Page;: 9 of 16 

KY.UEl E, LOMAZ.OW, FAA ATTORME'! 

TEL: (425)227~1847l FAX: (425)227-1007 
01/10/2013 11:20 4252271007 ANtv17 PAGE 11/17 

1 Complainant adjusts the sanction either upward or downward from. middle of th.e recommended 

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sanction range.30 The Complai.nan.t has identified thirteen (13) factors to consider when 

determining tbe appropriate sanction for the violations associated with this case.31 In Folsom's 

Air Service, Inc.,FAA Order No 2008-ll (November 6, 2008), the Administrator held that FAA 

Order reflects the Administrator's general views about the civil penalty ranges that are 

appropriate for different types of violations. In short, a civil penalty must reflect the totality of1he 

circumstances surrounding the violations . .Folsom's, sup_ra. 

Unlike the National Transportation Safety Board (NTSB) ALJs,32 Department of 

Transportation (DOT) ALJs are not statutorily bound by the Administrator's guidance. However, 

the ALJ is bound to follow Agency guidance and the Administrator has asserted the power to 

impose the agency's sanction policy on appeal if an ALJ assesses a civil penalty that is not 

consistent with the policy. See .ln the matter ojWarbelow 's Air Ventures, Inc., FAA Order No. 

30 The guidance provides that the :middle of each recommended sw.ction range is where one begins for a single 

vjoJation without aggravating or rni.tj.gating factors. FAA Order2150.3B, app. B, para. 3(c) [p. B-2] 

S.l Those factors are: .· .. 

a. Nature of the violatio:o.; 

b. "Whether the viol11tion. was jnadvcrtent and not deliberate; 

c. The certificate bolder's level of experience; 

d. The attitude ~;~fthe violator; 

e. The degree of hazard; 

f. Whether there was action taken by the employer or other authority for against the employee that 

committed the violation(s); 

g. Use of the certificate; 

h. Violation history; 

i. Decisional Jaw; 

j. Ability to absorb the sancti.on; 

k. Consistency of San.ction; 

I. Whether the violation was Reported Voluntarily; and, 

m. Corrective Action. 

32 49 U.S.C. §44709(d)(3) requires the Board to give deference to the Administrator's writt~n Agency policy, 

absent a fmding that it is arbitrary, capricious, or otherwise not accordi.ug to law. · ' 

!ca~E ;;: • LO!o!l\ZOW, FAA ATTORNS~ 

SX'lWEST AIRLINES - FPMS No F.AA-2011-0782 

FAA CASE :No. 2010NM060081 

PC~.ge ;t 0 o:C 16 TEL: (425) ,227-1847 i FAX: (425} 227-1007 
01/10/2013 11:20 4252271007 ANM7 PAGE 12/17 

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2000-3 (February 3, 2000), at 20; In the matter of Northwest Airlines, FAA Order No. 1990~37 

(November 7, 1990), at 8-10. 

From the ou,tset, the Complainant acknowledges that it has the burden to justifY the amount of 

civil penalty it seeks. In. the Matter of Luxemburg, FAA Order 1994-18 

(June 22, 1994). However, it is also well established "[a]n administrative agency i.s entitled to 

substantial deference in assessing the civil penalty appropriate for a violation of its regulations. 

The Agency's choice of a sanction is not to be overturned unless it is unwarranted in law or 

without justification in fact" NL Industries, Inc. v. Dept. ofTransportation, 901 F.2d 141, 144 

• ' , • '' . • l , •I {-.· '•" • ' 

(D.C. Cir; 1990).33 In this case, the sanction is not only appropriate but fully supported und:er the 

Administrator's sanction guidauce.34 

-.... 

11:J.is case does not involve 'a person on her first aitplane flight who cominiti a teiativeiy 

~7 m.irJ:or violation. By statute- Title 49, Section 44701(d)(l)(A)~ Air carriers are held to a high duty 

29 

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of care. Indeed, they are obligated to perform their servj ces with "the ,highest possible standard of 

care." See, e.g., Folsom's, supra, p. 16. This degree of care devolves from the carriers' 

responsibility to assure, to the maximum extent possible, the safety and well-being ofhs 

36 passengers, crew, and others involved in transportation by air: TI::te Administrator has made it 

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o\1;;1. 

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44 33 .. [T)her~ is precedent indicating that unless there <~re factors justl,:f.YJ:og the reduction of an otherwise reason,able 

45 civi.I penalty, Complainant's use of the sanction guidance to cletenniue. the appropriate civil penalty should not be 

-\1,6 disturbed." Jn the Matter of Blue Ridge Airlines, FAA Order No. 99-15, 1999 WI .. 1279832 (Pee. 22, 1999) citing 

4 7 Tral18 World Airlines, .Tnc., FAA Order No. 98"11, at 21 (June 16, 1988). Accord FAA v. Don Bessette Aviation, 

49 2006 WL 1624325, at 5, 7 (injtial deci-sion of Judge Goodwin). · 

4 Sl 31 ''When sanction is an issue, the law judge is expected to give a reasoned explanation of the amount of the civil 

so penalty selected, whether or not the penalty is reduced, The Admb::dstrative Procedure Act requires articulation of the 

51 law judge's sanction decision." ]71 the Matter ofToyota Motor Sales, Inc., FAA Order No. 94-24, 1994 VJ1, 89966 

52 (Sept. 30, 1994)(citing to 5 U.S.C. §557(c)). 

53 

COM:!'LAt~,t;NT' S HEARING BRIEF 

SKYWEST AIRLINES - ?OMS No FAA-2011-0782 

FM, Cl>.SE J:'Jo. 2010NM060081 

Page 11 of 16 

KYL~ Pl , l:.OMI>,ZOW, FAA ATTOJ'U.!EY 

. j I 

'1.'F.L: (425) 227-18471 FAX: '{425)227'-1007 
01/10/2013 11:20 4252271007 ANM7 

1 clear that "[ c ]ertificate holders with a greater level of experience may be hefd to' a higher 

2 

3 standard. "35 

4 

5 

6 Another consideration in. determining the penalty amount is Respondent's size. The 

7 

s Agency's policy is to place a relatively equivalent deterrent effect on each air carrier. As such, 

"[w]hen the violator is a large company rather than a small company, 11 the Administrator has 

said, 11 the penalty may need to be correspondingly larger to achieve the same deterrent effect." 

Toyota }vfotor Sales, USA, Inc., FAA Order No. 94-28 (September 30, 1994 ). p. ll. Here the 

PAGE 13/17 

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violator is "the world's lar.gest independently-owned regional airline. providing service throughout 

North America.''36 As an air carrier whose annual operating revenues are in excess of$100 million 

and who employs more thau 1,500 employees,37 Sky West is categorized under the Administrator's 

sanction gttidance as a Group I air carrier.38 As a large carrier by any measure, Sky West must be 

subject to a fine with a deterrent factor appropriate to its size. The penalty should represent 

something greater in effect than simply a cost of doing business. Considering SkY West's size and 

operating revenue, there is no issue about the ability to absorb the sanction. 

Tbis case involves Sky West faiJure to perfonn maintenance after the pilot reported. "8. 

mechanical irregularity severe enough to cause the captain to abort the takeoff. Instead of 

performing the required inspection, Sky West used a QRH procedure not designed for or 

41 applicable to the performance of maintenance. ~.2 

43 

44 

45 35 FAA Order 2150.3B, chap. 4, para .. 4(c)(l) [p. 7·5] . 

46 3G Sky West Airlines Fact sheet at http://www.SkvWest.com/mediaJSJ.-'YWest·AirU;w~E!;,s.t;:§b.!te..!J?l:IJ;J. (retrieved June 

47 9, 2010). ' 

48 37 See Answers to Request for Adm~ssions land 2 iu Respondent's Response to Complainan.t,s In.itial Discovery 

49 Request. According to SkyWest's own statements on its public website, it employees 10,373 full-time employees 

so operates 323 aircraft, an.d had an operatingrevel'll.le of$9:21.2 mUlion in tbe quarter ending March 31,2012 alone. 

Sl See www.SkyWest.com. 

s2 a FAA Order 2150.3B, app. B, para .. 3(c)(l) [p. B~3]. 

53 

COMP.LAI~Nr'S ~~~RJ.N~ aR'-~F 

SKYW:saT A:tRLINt.S ~ FDMS NO FAA-2011-0782 

FAA CAs.e No. 2010NMOG0081 

Pag~ 12 of 16 

KYLE E , LOMI\.ZOW, FAA ATTORNEY 
01/10/2013 11:20 4252271007 ANM7 PAGE 14/17 

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For sanction purposes, the Administrator has identified what an appropriate sanction 

would be fo:r. each type of violation alleged in this case. For sanctions involving operation of an 

aircraft in violation of its operations specifications, the sanction range is $10,000-$25,000 for 

each violation. Beginning at the mid-range, prior to any further evaluation, the initial sanction 

would be $17,500 per violation. Here~ Sky West operated N948SW eight times in violation of its 

Operation Specifications, which would equal $140,000 ($17,500 x 8). The sancti.on sought in this 

case is $68,500, wl1ich is a significant dmv:nward deviation. 

Furthelmore, this was not an inadvertent act. SkyWest intentionally used a manual they 

know js for flight operations only and therefore caused a passenger carrying flight to be released 

. ~ . . . ~ ' ·, • '·· ·' : '. :, l 

in an unairworthy condition. An air canier with SkyWest's level of experience ilfexpected to 

···;. '• • 1_ ~ ,... ~ ,- . • ~ ~. ,, •• • '', •• ':· '·· .·.,··._( .~ 

const.stently comply with the Federal Aviation Regulations. To date Sky West has not taken. any 

steps to en~ure t:hai'a si.milar violation will riot in fact occur again.-39 :· '. '. ~ . '. 

Even iftl1e five regulation violations were considered as being multiplidous for sanction 

purposes, $17,500 per violation would equal $87,500, which is at the lower e11d of the sanction 

guidance. There is no evidence that has been presented by Sky West that warrants a downward 

deviation from the Administrator's sanction guidance. Any amount lower than the proposed 

sanction wo~ld not provide sufti.cient deterrent. The Agency is in the best. position to d~termine 

. . 

what sanction should be imposed for a given violation and abseut a fl.ndblg 1hat the 

. . 

Administrator is acting arbitrarily or capriciously, the ALJ should give deference to the sanction 

proposed by the Agency, particularly when th.e sanction proposed is at the lower en.d of the 

sanction. guidance: 

s2 39 Sec exhibit C-9 

53 

COMFT,AJ:WJ.\))11'' S HF.lliR,;r,N(l BR;r.EJ;' 

SrcrWES'!' Aur •. :r:l'r.lS- FDMS No FAA-2011-0782 

~AA. Cli$E No. 2010NM060081 

;F.>;;.ge ~3 of 16 . . 

KYLE E. I.OWI.~OW 1 ll'AA ATTORNEY 

TEL: (425) 227-J.847.l F.AX: (425) ~27-J,007 
---------------------------------....., 

01/10/2013 11:20 4252271007 ANM7 PAGE 15/17 

1 

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VI. RESPONDENT'S DEFENSES DO NOT WARRANT A REDUCTION IN 

SANCTION. 

6 The Respondent rose as a defense, but presented no evidence to support, tha.t the proposed 

7 

a penalty violates FAA policy. is excessive, and. IS an abu.se of discretion. Tiris assertion lacks 

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meri.t. In the main, the Respondent has the burden of proof for any affirmative defense. 

The Administrator is ultimately responsible for regulating safety in air com.m.erce. 

Congress gave the Administrator the power to prescribe regulations.40 In furtherance of this 

obligation to the public, the Administrator has the authority to impose sanctions for violating 

A.ge:o.cy Regulations.41 .The Administrator has made available to the pubU.c how sanctions will be 

determined and what factors it vvill consider. However, as to the weight associated vv:i.th each 

factor "the Complainant maintains relative prosecutorial discretion io .. detenni.ni.ng the case's 

final aggregate weight in proposing the level of civil penalty!' In the lv.fatter of William A. Luker .. 

.Jr., FAA Docket No. CP09SW0008, 2010 WL 1989430 (May 13, 201.0) (Order of Chief Judge 

Yoder Granting Complainant's Motion for Sumrn.ary Judgment) 

51 -iO 49 U,S,C. §40 11.3. 

52 

41 49 U.S.C. §46301. See also 14 C.F.R. §13.16 

53 

COM:;>J,.JI,;r.NII.l<I'T. I s H'E111.1l.:tNG EIR:t'SF 

SKYW1i1S'J." Al:R.J.INE$- FDMS No FAA-2011-0782 

FAA CAsE :t:ro. 20l0NM060081 

Page 14 of :1.6 

K'r:t.>: t. Loro~.>~.zow, FAA AnO!tliiE"! 

TEL: (425) 227-1847; FP.JC: (4::J5) n7-~.007 
01/10/2013 11:20 4252271007 ANM7 PAGE 15/17 

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CONCLUSION · 

6 SkyWest failed to perform maintenance after the pilot of the subject aircraft reported a 

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s mechanical irregularity severe enough to cause the captain to abort the takeoff. Instead of 

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performing the required inspection, Sky West used a QRH procedure not designed for or 

applicable to the performance of maintenance. This substantial disregard for the safety of 

passengers led to SkyWest's approv~ for return to service, dispatch and operation of an 

unairworthy aircraft. These types of actions by a major air carrier are simply inexcusable, 

especially considering 1hese are passenger carrying fl.ights. Given the circumstances and the fact 

that the Administrator could have sought a much higher saucti.on, the $68,500 proposed is more 

than reasonable. The AL.T should defer to that sanction and affirm the Co1:nplainant' s reque~t for 

the imposition for a $68,500 penalty. 

RESPECTFULLY SUBMITrED this lOth day of Jan.uary 2013. 

( __ ...... --···~;/ ,... ,.~·" 

COMPLhi~ANT'S HE~~J.NG nR.F.F 

SKYWEST AIRLIIJES - lf:OMS :NO FM~2011~0782 

FAA CliSE No. 2010NM06008l 

Page 15 of :t.6 TEL1 (425) 227-lS47; FAX; (4:<tS) .?.~7-:1.007 
01/10/2013 11:20 

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4252271007 ANM7 

CERTIFICATE OF SERVICE 

4 I hereby certify that the foregoi.ng Complainant's Brief, has been served via Facsimile and 

s Certified Mail this date, to the following: 

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The Honorable Richard C. Goodwin. 

Office of hearings. M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El2-320 

\Vashington, D.C. 20590 

FAX: (202) 366-7536 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

800 Independence Ave SW · 

Wilbur Wright Bldg. - Suite 2WJ. 000 

Washington, D.C. 20591 

FAX: (202) 493-5142 

Todd C. Emerson 

Sky West Airlines 

444 S. River Road. 

St. George, Utah 84790 

FAX: (435) 634-3505 

Dated this 1oth day of January, 2013. 

Office 

~~ of Regional Counsel (ANM-7) 

Federal Avjatio:n. Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

TEL: (425) 227-2164 

FAX: (425) 227-1007 

PAGE 17/17 

CoM~~ZNANT S REARING aRZEF 

SI<¥WBS'l' AlR.~~NEl!il - FDMS No FAA-2011-0782 

FAA CASe; No. 20;I.0NMOSOOB1 

XYJ:,E E. LOIIVt.ZOW' FAA A'!"I'ORJ>.TE¥ 

P;;tge 16 of 16 TEL: (425)227-J.947f F'.IJ.X: (425)227-1007