02/16/2011 1G:14 FAX 2024935142 FAA * DMS glOOI/017 

loiUi C, liiiicrson, "SI 75 

444 Soutli Rivor ROIKI 

Si. (icoi-yc. LlUili, S470() -jf! 

Telephone; (435) 634-3530 

Fncsiinilc: (435) 634-351 >5 

AtloniL'y for SkyWciJt Airlines. Inc. 

PARTMENT OF 

J!3TORW!0N 

:ET OPFRATiONS 

•E6 l b P U: m f'EBlB m'^^ ^«B»l»®@^jg^ 

UNrrro STA IKS OF AMKRICA 

DEPARTMENT OF TRANSPO R I ATION 

OFFICE OF IIEAR[NCS 

WASHINGTON, D.C. 

In tlie Matter of: 

SkyWcsi Airlines. Inc. 

RESPONDEN I S POST FIEARING 

BRFEF 

FA A rXJCKET CP009NM0012 

DMS No. FAA-200y-(>970 

FAA Case No. 2009NM060()42 

Jutiiic: Richiird C. Goodwin 

INTRODUCTION 

On ihe morninij of February 17, 2000, two FAA inspectors arrived at the dc-icinij pads on 

th« western side oClhe Salt Lake Inlcmationai Airport to perform element pcrfomiance 

inspections on .SkyWcsl Airlines. These inspectors, .lason Craiii and I3cn Bhuicr, vvere both 

fnmiliar wiili SkyWcst's deicing pro^^ram, havini» studied nnd surveyed il on previous 

occasions.' They also had an cxccrpl of Standard Practice 2<S00 with ihem. which is the iipprovcd 

dc-iciny program for Sky Wcsl Airlijies." hi fact, Mr. Grain wys (he SP 2800 content expert and 

the point of contact for dc-icini,' que.slions at the Ccrtillcate Management Ofllce ("C.MO")."' 

I'r. at 10. [.iiK'Ci-S. I'r. ;u:i7 . Line >S-10 

" \r. ;ii IM, l.iiie 17-18 

•' II". ;U 13. I.iiiL-22, Ir. ji 14, I.inL>4-ll 
r*. * DMS 2)002/017 

02/16/2b11 16:14 FAX 2024935142 FAA 

Despite this, lie did not know diac the deviations lie was about to .see were previously noted hy 

inspector Joan Peterson on February 10, 2009.'^ Neidierdid SkyWest,' 

In its brief, the F.-\.-\ ignores the undisputed fact dvai its CMC had evidence of six 

potenliiil \iolaiions for I6S hours belbrenotifying' SkyWest lis required by the F.AA 

Adminisu'iiior's Oriior 21 50,JB. Seven days later Crain and fJlauer observed seven more 

deviations, which, if they did not immediately recogni/e them as violations, tcslit'ied they knew 

it within two hours.'' These alleged violations resulted in an adviitional penalty of 584,000 

sepiiraie from the alleijcd violations on the lOth. Ironically, the FAA factored the previous 

week'.s undisclosed violations into the penalty as "especially aygravating" because SkyWesr now 

had a "violation history" for similar offenses.^ Apparently the FAA believes it does not need to 

follow the Administrator's Order, which requires immediate notification of potential violations, 

but is free to slowly compound violations and then present the carrier with a penalty "laryo 

enough to sei-ve as a deterrent."'* As discussed below, this violates SkyWest's right to due 

process and loni^-establLshcd Supreme Court precedent forbidding agencies from ignoring their 

own enforcement regulations. 

Instead, Ihe FAA's brief mostly focuses on defending the calculation of its penalty and 

skips over its burden to show liability, claiming liability is obvious and has already been 

admitted. In fiict, the Respondent has specifically denied liability' and admitted only that the 

spray pattern on certain aircraft commenced at the root of the right wing. 

I. The FAA Has Not Met Its Burden Of Proof 

The FAA has the burden to establish liability lor the penally - but simply assumes the 

burden is met wjdiout stating the standard, the rule or analy?:ing the evidence il offered at the 

hearing. Although the FAA treats them as such, the seven alleged violations are not identical. 

The inspectors lestified that sometimes an airjilane was sprayed root to tip, at other limes, the 

ground crew allegedly started on the right wing instead of the left. " However, neither in.specior 

"^ V\\ ai2r)0. Line 16-21 

^ Tr. ;ii 250. Line 16.21 

^ l Y Ji74, 1 iiiL- 10-15 

' fr. ar^L (.iuo4-2() 

'^ Ir. vit 169 (A/I) 

I) 

('oiiipliiiivjm's PoM-llc;uiiiy, (iiii:!', I*nyi: 4 

' " Fr, ,u i:^S, Line 17-22, TT. at l^d, line 1-14. li. iic 240, Liin; 2-14 
•> DMS §1003/01 7 

02/16/201 1 16:1 5 FAX 202433514 2 FAA 

has an indepeiideiu reeoKcclion of the facts surrounding any particular violation." 'fhey have 

never prepared a catalog of per-aircrall violations.'" hrsleacl. they relied completely on their 

notes and then tiscd Sky West deieing logs lo link up alleged violations. ' Messers. Crain and 

Blauer did not 1111 otn the F.lenKnt Performance Worksheet and their Inspector's Statement does 

not link any alleged \iolalion to any specific aircraft. Neither are pcr-airci'aft allegations 

piesent in the Notice of Proposed Henally or Ihe original or .Amended Complaint. In fact, the 

FAA lias never iiemi/.ed what went v\rong in the deicing procedure for any particular aircrall. 

All it has arc the inspectors' testimony, based entirely on handwritten notes, which Inspector 

Crain described as "chicken scratch" and "contradictory."' '^ 

I'hese notes are also very sparse. They do not document the aircraft's location, the time 

of the observation, content of observed radio conununicatiuns between tlight crew and ground 

crew, (In^ wan/ifr conditions, accumulation of contaminant, absence of contaminant, whether the 

aircralt got a single or two-lruck operation, which de-ice pad was used and no indication that the 

pilot in command failed lo aulhori/.e a deviation from ihc approved program."' 

The notes are not helpful to the trier of fact because they cannot be deciphered by anyone 

other fiuui Ihe inspectors. In fiici, Mr. Crain could not interpret some ofhis notes at his 

deposition without rcfeiTing to SkyWest's de-icing logs to help him make sense of the 

numbers.''' At trial, he knew what his "check de-ice, not anii-icc" note signified, but U) months 

earlier at his deposition ho said "number ! is check de-ice, not anti-ice, and I don't specifically 

remember what that note means. Hui the fluid application requirements started de-ice on the right 

wing. The anli-iee .started on the Icll wing."' His explanation for his improved deciphering 

skills vvas "Well, I'd say within my answer there, it contradicts itself I say, one, that I don't know 

whal il means and then I basically describe what it means, so I think it — kind of like \vhal I 

mentioned n second ago — started out one way and ended up getting the answer for both. So I 

' ' t'r. ai Li6, Line I-14, Tr. .il 2.13. l.iiw V-22 

'- Tr. ;)i 103. Lim> S-15. Ir. ai 229. Lini; .Vl.^ 

'•' I r. JI 109, Line 11-1/. Tr. ji 229. Line .Ul.l 

';! Ir. ur 104, Line l'^2n, jr. ;ir 107, Line 21-22, Ir. ai lOS, Line .S-12 

'^ Ic ;u 44, Line <). Ir. ar 114 (,\ll), Ir. ut I.>S, Line lS-22, IMge t3<J, f.inc 1-2 

"' Tr. Lii 120. Line 7-17. Tr. -u L^^2, Line 2-22, Ir. ji \},:^, line 1-7. I'r. ;U 19.^ 

'^ Tr. .11 109. Line 1117. Ir. .il 110, I me 21-22, Tr. .ii 11 L Line \-\ 

'^ li.a i 111. Line 21-22. I r. lit 112. Ir. Jt 11.1 
C44 ^ DMS 2)004/01 7 

02/16/201 1 16:15 FAX 2024935142 FAA 

don't renicMiber vvhat 1 referred to on the llrst part, but the second part is clear as lO what I 

saw.""'' 

The alleged violaiion, which SkyWest has never admitted, is that de-icing improperly 

started on the right wing. However. Crain al.so claims anti-icing commenced on the left wing. 

which means the left wing was previously de-iced. His bare notes do not e.xplain this 

incongruity and he could not account for it at the hearing: 

Q; Your noie there, can you lell us what that says, die nc.vt two notes down under 

"Clieck de-ice, not anti-ice." 

A; "Fluid application requirements started de-ice right wing, anti-ice left," and 

then there's two little notches, meaning "vving." It's shorthand, meaning that the 

deice was — was started on the right wing, which is not correct. I he second one, 

when they did anti-ice, apparently they did it con-ect, 

Q: How can they slarr the anti-ice on the left wing? It already has to be de-iced 

first. You can't anti-ice with the Type 4 lluid until the de-icing has happened flist. 

A; That is correct. 

Q: But you say here that [de-icing] started on the right wing. If they started the 

anti-ice on the left wjng, the Icfl wing had to already be de-iced; right? 

A: Yeah, That's not an issue. Basically, ifthey started right wing and worked 

their vvay around the truck — it could have been a two-truck operation — I don't 

recall — but working their circuit, if there's two irucks, could have had the other 

guy on the left side spraying the left wing llrst as required. 

Q: It might h?ivc been a two-truck operation, it might have been one? You don't 

know? 

.A: That's not in my notes and f don't remember novv on that specific aircraft, no. 

Q: Were Ihcy doing two-lruck ops. that day? 

.V; Yes, on some of the aircraft. 

Q: So you're not sure what happened wiih ihis airplane? 

A: Well, in this particular case, whether ihere was one truck or two trucks is not 

so much relevant. It's where did the application began, knowing that the 

representative surface is key here. So if they're following the procedures and they 

.started on the lel\ wing, as expected, dial's what ihe pilot is gonna be looking for 

'"Vr. ai 114, Line 17-22, Tr.iil 115, Line 1-.^ 
•>• QM S @)005/017 

02/16/2011 16:15 FAX 2024935142 FAA 

in his represeniative surface. When Ihey started deice on the right uing. now 

they're on the complete opposite side of the airplane ;ipplyiny (luids. 

Q; Did you ever see one iruek start on the right side of an airplane, start the deicing, go all the way iiround, and then anti-ice from the leli side? 

.\: You say one truck or luo? 

Q: One truck. 

.V: No, you couldn't do thai because Ihc circuit has to be completed. 

Q: So this had to be, you think, a two-truck operation? 

A: Well, that's \vhat I'm saying. I don't remember what I saw on that particular 

aircratt. You're talking specific airplane and my notes aren't in a point to cover -

ba.scd on that note right there on that airplane, I couldn't lell you. For some 

multiple taick.s, yes. Was that one? I don't know."" 

The tortured answer amounts lo "although ivy notes arcn'l clear, I knovv what I saw. 

Maybe." The problem is, as both Crain and Blauer have admitted, they have no independent 

memoryof any specific violation wiihout their noles. 

Inspector tJlauer was candid about the holes in his notes, admitting that the time of the 

alleged violations was not included." He noted a root lo lip spray pallem on aircraft 66S but 

docs not know on which wing it occurred." He cannot say, from his noles, whether 

contaminiinl liad accumulated at the root of the wing thai required spot removal by starting at ihe 

root but said it is reasonable lo assume there vvas some."' Although he testified that no pilot 

ordered a deviation in ihe spray paiteni. he admits that this key element is not documented."'' 

There were several aircraft that had two-lruck operations, which might explain how de-icing 

could start on the wrong wing, but Mr. Blauer did nol make a specific note as to which airciaft 

had two irucks and which had one truck."^ He understood thai SP 2800 allows de-icing crews 

the discretion to spot clean accumulations of snow, even if il means spraying Huid uphill, against 

ihe pilch of the wing, He also admitted that his notes did not account for this. 

-"TV. .11 115, 116. 117, Tr, HI IIS, Line 1-7, Tr, .u IIS. Line 18-22. Tr.,ii 119. Line 1-3 

-' Ir. ai 229, I me .1-1."^, Tr. .it 229, Line 17-20 

-" Ir. J( .'.]•}, Line 9-2.'.. Ir ui 2.U, Line 1-.^ 

•'•' Ir. iu2.>4. Line 16.22. lY. .ir2.'-\ Line 1-15 

"•' I'v. -.il 2.--5, I.inc 14-15, IV. 2.V>, Line 2-3 

-•^ Ir. at 23«, Line 9-1,'t!. Ir. M 239, [,ine l-.'.O 
02/16/2011 16:15 FAX 2024935142 FAA •i- DMS 21006/017 

Without i-eferring to his notes. .Mr. Blauer has no independenl rccollcetion of what went 

'.M-ong on each particular aircraft."'' He also admitted that none of the specific discrepancies he 

noted made it into his memo, the joint in.specior's sialenicnt, ihe Notice of Proposed Penally or 

ihe two versions of the Coniplnint.' 

.\ rc\ iew of the inspector's noles, coupled vviih the uncertainty of the testimony offered 

at the hearing, demonstrates thai ihe F.AA is pro.sccuting a case based on speculation and 

conclusory statements. Al 512,000 per aircraft, the FAA needs lo specifically support each claim. 

The FAA did not sufficiently documeni the evidence of ihc alleged violations and it cannot ask 

this court to fill in the blanks to help it mcei its burden. 

II. The Program .\l.so Allows For Sprav Pattern Devjiitions to Conduct Spot 

Cleaning, Which The Inspectors Cannot Refute. 

Further, there is no evidence in the inspector's notes to rule out spot cleaning as described 

in SP 2S00. page 11 Paragraph 14. The de-icing program has more discretion than Ihc 

government concedes. The program allows the de-icing crew to deviate from tip-lo-root and 

leading edge lo trailing edge spray palicrns."'^ '"It may be necessary to spray from the trailing 

edge forward when ice accumulation is present in ureas such as fiap track and control cavities." 

UL These areas are located at the wing root and midsection, nor ihc lips, where heated de-icing 

lluid would be first applied and allowed to soak in and melt the contaminants as the crewman 

works ihe hose away from the fuselage. This commonly occurs as contaminant from ihe left 

wing and fuselage is blown onto the right wing during the cleaning process. The inspectors 

could not rule this out by referring lo their ihin notes: 

Q. So ii's possible that they started the de-icing operation properly on the left side of 

the aiiplane, again, snow and ice blows over the top of this fuselage, gets trapped 

in this notch behind ihe engine. And when ihey came around on the right side, 

they started here and then went out and de-iced the rest of ihc wing, fs that 

pos-siblc? 

A. Based on the notes that I have here, would that be possible'' Sure." 

• Ir, Jli.^Ci. Line 2-12 

'^ Tr. ;n 229, Lino .1-13. T 

"'"^ Tr. Ji 253, 1 inc 19-21 

"" Ir. :il 136. Line 3-12 

22'). Line 17-20 

(> 
+ QMS 121007/017 

02/16/2011 16:15 FAX 2024935142 FAA 

The Sky West de-icing logs indicate there was mute acti\e snowfall than the inspectors 

remember (there is no weather information in their noles) because several aircraft requested ihe 

type IV de-icing lluid, which increases hold o^-er lime in active precipitation,"" 

hven wiihoiii contaminant building up at Iho root, Jason Crain admits that the hose passes 

liaek and forth across the wing, .sometimes going from the root out, and the spray direction 

varies, 

Q. They then start application. Will ihey oscillate the hose in differetU directions? 

A. Sure they do.. . the location to start from what you're explaining, ihat they're 

starting on the vving lip and going in and then coming back, no, 1 don't have a 

problem with that,'' 

Finally, both inspectors repeatedly .stated that all airplanes were free from contaminant 

when ihey led the de-icing pads.'" no safety of flight issue existed, and SkyWest complied with 

the program's puipose of (1) removing frozen coniaininanis from the critical surfaces of ihe 

aircraft, (2) ensuring chat all frozen coniaminanis have been removed from the aircraft's critical 

surfaces after de-icing has been completed, and (3) providing proteclion againsi frozen 

contaminants forming on critical surfaces of the aircraft."'^" '^ 

The FAA does not have reliable evidentiary support to prove liability, and if it did, it has 

no evidence lo refute Ihc need to spot clean the right vving root. 

ML The Proposed Penalty Is Cumulative And Violates Due Process. 

SkyWcsi also raised the affirmative defense that the FAA is haired from enibrcing its 

proposed penally because il failed lo follow its own piibli.shed enforcemcnl policy. '^ At the 

hearing, .loan Peterson, Jason Crain and Ben Blauer testified that Ihey had read and been trained 

Tr. ;ii 292, Line 3-5 

'' Tr. Lil Ls:, Line 2-6, 20-22 

•'•Tr. :if251,Line4-13 

''T(.in 193 (.All) 

•'"* fr, ui 2.'>4 - 255 

~ ,V(i,s"vr. paniiirapli 2. [T^. -I 
02 /16/201 1 16:1 5 FAX 2024935142 FAA •> DMS (21008/017 

o\-\ F.A.A Order 21.50.313."'' Chapter 2-2 section 3(d.j oi'ihe Order, eniiilcii '"N'otifying Persons oi' 

I'otenlial Violations" instructs the inspectors "in any situation vvhere F.A.A. enforcement 

personnel identify a potential violation, they take appropriate steps immediately lo notify a 

responsible person who can take appropriate action to prevent it," (Rxhibit A)(emphnsis added.) 

The Order also liiieois "FA.A enforcement personnel |lo] lake compliance and enforcement 

acti«)n to prevent future actions thai would violate the regulations (for example, inunediate 

coneciive action . . .""" Chapter 2 section 3(F)(2). 

Due process requires any federal agency lo scrupulously obser\e the rules, regulation.s, or 

proceiiiires which it has established, "When it fails to tlo so, its action caniiol stand and courts 

will strike il down." U.S. \: Hi'JfiK'r ^20 F.2d 80'J (4ih Cir: 190^)) citing Uniwd Suites e.v rcl. 

.\ccanli V. Slniu^^hncs.'iy, 347 U.S. 260 (1954). Even if immediate notice had not been required 

by Order 2150.3B, or any other rule or regulation, ihe notion of due process requires ihe FAA lo 

act swiftly to notify the regulated entity of polential violations .so that they may be addressed. 

Allowing penalties to accumulate and compound not only offends due process, it also defeats the 

public safety function of the agency. 

The FAA argues in a footnote that the Accardi docirine does not apply because Order 

2150.3B docs not provide a statutory or regulalory right and is merely a guide to inspectors.^ 

I lowevcr, lU'ffner teaches us that fonnally enunciated rights arc not required. In Hcfjhcr an IRS 

investigator failed lo warn the defendant that he was investigating tax fraud and he never advised 

the dofendaiu he could retain counsel. These advisories were not required by law, regulation or 

official order, instead, the IRS had issued •"instruciions" to its agents, which vvere published in 

"IRS News Release No. S97, Oct. 3, 1967." The defendant was convicted of lax fraud, which 

the circuit court reversed, saying "it is of no significance thai the procedures or instructions 

which the IRS has est.iblished arc more generous than ihe Con.stiuilion requires . . . Nor docs it 

mailer that ihese ir<$ inslruclions to Special Agents were not promulgated in something formally 

•"' Tr, ;>i K)X Lino 14, I'r. al 16.^. line 17-22, Tr. ;n 166, Line 9-15, Tr. at 241, line l,S-22. Tr. iU 242, Tr. :it 

3'')2, Line 16-22 

llii."; is nol ;i suiprising po.inion An- ihe I'.A A lo uk'c-. liuleeil, tlic Oi\ler .siatos "Tlii i Oiiler ilocb not 

ereate any ni;lii or benel'il, .^ubsuniivc Of proeeilurnL ciil'oree;ibile j l la\v by any purry uizainsi ihe l'.\.'\," Order lit II. lint this i.s not a eonii:ici uinj noi:) mere "uuulc lo iiispeeioi'j." li is a deuulevl eniinenuion ullhe l-.X.^'s 

('i.>nipliaiiee -.nKl Lnl"(.>reenK-iit I^ogrjni, spuiuiinij 337 puiies. eivaiiii;: iiution;il policies tli,'»t eamidi be (.li.seluinied. 

,\li'. .Mollis ciiod it lepeatedly j i tile lieanng, ,iiul in \\\-i biiel~, us justilleiiiion fur (lie peiuliy eLileuhium. Mie ;iirmoii 

oind c;iiiieis operi^ie in icliance lliai the .Ayeney \v.ill follow ijic pollcie.'i .sei (oirli in llie (."oiiipliaiiee and Liiloreeuienr 

I'loiiriiiii. However, ilie .A^eney argiio.s tliaf ii is iree lo iijiiore its piibhilied Order, wlijcli i,s Ihe dcllnilion of'ilie 

,iil)ilriny ,ibu>e nidi.'iereiion. I he ..Veejrdi doctrine i.'* riiiieh broadi.T iluii ilie f-AA .s cramped intorpreiaiion. 
* DMS 2)009/01 7 

02/16/201 1 16:1 5 FAX 2024935142 FAA 

labeled a "Regulalion" or adopted with strict regard to tiie Administralive Procedure Act; the 

Accitnii doctrine has a broader sweep." Jfc/Jhcr at .S12. .As such, this requirement has been 

applied to a Department of Ihe Interior 'Order', to the Anny's 'Weekly Bulletin 42," to afCC 

"rule" v\hich had not been fomially promulgated and a Department of Defense "Directive." fd. 

These cases are consistent with ilie doctrine's puiposc to prevcnl the arbitrariness vvhich is 

) (J 

inhcrcnlly characteristic of an agency's violation of its own procedures, ' 

Here, .loan Peterson lestified that she witnessed iiTcgular de-ice and ami-ice spray 

patierns where aircraft were sprayed root lo tip on February 10, 20(19.'''' Accoixling to her 

testimony and her written statement, she spoke with SkyWest de-icing pad manager Tylor I.evvis 

prior to commencing her surveillance on the morning of i'ebruary 10 to make sure her position 

on Ihe field did not interrupt operations.''' He told her she was fine, returned to work, bui then 

revisited Ms. Peterson 20 minutes later lo fomially introduce him.self and get her contact 

information. She did not have a business card, so Mr. Levels gave Ms. Peterson his contact 

infomiation, told her he was new to ihc position, and asked her to let him know if she .saw 

anything amiss."*' Al this point, Ms. Pcierson had already witnessed potential violations hm .uiid 

n<yihiii\y to Mr. Lewis. ' Clearly he was a "responsible person" as contemplated by chapter 2-2 

.section 3(d) of Order 2! 50.3 B but Ms. Peterson did not advise him of the polential violation she 

noted. Instead she retumed lo the office and reported the variations to her bo.ss, Paul Ramirez 

and to the Principal Operation.s Inspector, Noal .lohnslon on February lO."*^ Unfortunately, il 

look more than 168 hours for anyone at the CMC to inform SkyWcsl of the potential violation. 

Compare this lo ihc 2 hours il took .lason Crain to notify SkyWest of the potential violation after 

he relumed to ihe office afler completing his FPI."*"" Ms. Peterson testified that it was her regular 

practice lo notify the carrier of a potential violation, and thai Noal Johnston al.";© made such 

IS 

In a Ibornote, ilie FA/V eites ro ;in unpubli.'ilicd ease, Bdiric \; F.l.t. for ilic propo.siiion rhai ihe prior 

Older .215().3.-\ <loes noi ereare individual rii;his in rhe air operaror. LLnvevYr, fiiirrw also opcii.'^ wiih ihs >-varriiiig 

"This order and jiidynient is nor binding preeederit. except under the doctrines oF law ofrhe ease, res judicata and 

collaieral c-itoppel.s. I he court iiencrally di.it'avor.i the citation orortlcr.s and judymcnis," Biinw \>> ea.sily 

diiliniiuishablc (Vom the prc>eiit case in dial ii involved an ;iirman who plolled to violaic his .fipecial (light perinii and 

complained when die inspeclors did nol .stop him. per M'i Order ihai is noi al is<iic in iliis C.TSC. 

•^'' T). ji 3IS7. Line 19-22 . Tr. at 3S«, Line I 

•^" Tr. at 373, Line 21-22. Tr at 374, [.ine l-« 

"*' Ir. al2S;3.Liiw2.l2 

""' Ir. ar3Sl,Linc 15-22 

Ir ai3,Si. l.iiu' 1.^-22, Ir. M ."(S.^, 1Y, at 3S(I, I ine.S-l(i 

•*•' n . al 74. Line lO-l.^" 
T A A + UVi ^ 01010/017 

02/16/201 1 16:1 6 FAX 2024935142 FAA DM^ ' ^ 

notillcaiions. but nothing was done on the 1 ()''', '^ Worse, her bosses knew she would be absent 

lor an indefiniie amount of time but no efforts were made to distribute her workload or 

comnuinicate the potential violation to SkyWest on her behalf"' Her cases simply sal on her 

desk. ' The F.AA makes no effort lo explain or excuse Lhis lapse and cannot see how it relates lo 

the discrepancies of the 17'", ^'^ 

This lime lapse is critical because cdl iliiw: iiis/Hxlors icsdjicd that tln'v iu'vt-r witiicssed 

ihc dcviaiions nnaiii after notice iiv/.v iciycn to SkyWc.'il on P'chnutry I 7, 2009.'' David Katsilas 

and Tylor Lewis testified that SkyWest took inunediale action to address the FAA's concerns.""^ 

In fact, Mr. Lewis lestified that his correctives measures were taken minutes after Mr. Crain 

poke with him so that the next bank of airplanes would eonfomi to the FAA's directives.'^' It is 

safe to .say thai had the CMO informed SkyWest of the polential violations it observed on 

February 10, none of the seven obsei^'cd deviulions would have occun'cd on February 17. 

Instead. Ihe FAA let 168 hours go by and witne.ssed 7 more deviations, to the tune of S84,(K>(), 

before it finally alerted SkyWesi of its concerns. 

Even state courts have looked dubiously upon agencies that allow penalties to mount 

before noiifying the regulated entity of the potential violation. In People v. R.J. Reynolds 

Tobacco Co, 124 P.3d 408 (Cal, 200,5) the Attorney General was aware of defendant's free 

di.slribulion of cigarettes but delayed telling defendant thai il considered defendant's actions lo be 

illegal. Like SkyVVcsl, the dcfcndani halted its actions immediately after the Atloniey General 

put defendant on notice, but by that time a massive potential fine had accrued. The California 

Supreme Court remanded the case and instructed the lower court to consider whether the delay 

contributed to the si/.e of the fine, if so, ihal fact would be relevant in determining whether the 

fine wiis excessive. A/, at 422. 

s 

"'•"' Ir.ai390. Line 3-10 

""_' 1 r, ai 399. Line 1-13. Ir. ar 491. Lme 1-6 

^' Tr.iM 401, Line U->-l\ 

• I K 

Inisiead it ariiucs thai this lapse wiis taken into account on ihe civd penally, which W-,IH reduced to 

S20.t)0(.) from die oriijinal propo.sed penally ot'S72.00<). OfcoiiKC. ihc same acknowlcdi>enieni of failed notice 

KlKHiUi tlovv.' lo ihe instant alleyei.1 violation.s, ^Oiich would liav^- been iibviatej wiih a .smyle phone call Ironi rhe 

(MO, 

""^ Tr, at 2()V, Line h-]2. Tr. at 2.^2. Line 1-0 

'" I r, al 272, l,inc 14-22, Tr. ai 273. ( ine I -3, Tr, ai 277. Line 11-l.S. IV, 292, t,iiie S-l I, Ir. at 31)3, i im- (. 

•' Tr. jt 2V2. Line 3-.5, Line S-l I 
+ DMS @1011/017 

02/16/201 1 16:16 FAX 2024935142 FAA 

'fhe California Supreme Court was follovving its own precedcni: il had pre-viou-sly 

iiualidaled a fine levied by the Department of Alcoholic Beverages because it resulted from the 

government's practice of accumulating "different bul es.sentially identical violations, before it 

filed its accusation charging the lieeiLsee with the whole series of violations and assessing 

concomitant cumulative penalties."" Id. 

In addition to the w<eeklong lapse, the FAA continued its penally stacking on the 17''' as 

Mr. Crain and iV|r. Blauer noted three discrepancies but said nothing to Tylor Lewis during the 

hour long break where no aircraft came to the western de-ice pads. 

In his testimony. Mr. Bhiucr made no excuses for not complying with the Order. With 

"Twenty/twenty hindsight, I ihink [noiifying] probably would have been beilcr" he candidly 

adn^iilcd.'^' Ifthey \\\\d notified SkyWest, it vvould have prevented S48,00O of additional 

potential viylLitions from happening. 

Mr. Crain was more evasive. He reluctantly admitted the value of noiifying the company 

prior lo commitiing four more polential violations. However, he claims ihat he could noi tell 

whelher Tylor Lewis was managing die de-ice operations, despite being parked a few yards away 

and operating a hand-held radio as he watched ihe operation in a SkYW\;gt tJUtk ' "* If rnilfllSiril 

llKuilf I ylor, lie Ivncw vvhu 10 call at company headquarters but the FAA did not provide Mr, 

Crain wiih a cell phone and he was not going to use his personal phone."^"^ Even if every obstacle 

had been removed, he didn"t "see Ihc value in that hour you're speaking of of how that would 

have had an iinmediale impact on ihcir operation." '^ 

CONCLUSION 

The KAA has not met its burden of proof on the particular facts of each alleged violation. 

Il prefers to skip this paii, claiming that SkyWest admitted away the case, largely because the 

FAA cannot credibly support its claims. It al.so argues that iis broad discretion includes 

enforcing the policies of Order 2150.3B, wiihout being subject to the Order itself Whether 

under the Accardi doctrine, or general notions of due process, the FAA cannot sil silently by, 

racking up penalties but taking no action lo slop the alleged wrongdoing, until the fine is 

;'^Tr, at 247. Lino 4-21 

''Tr . at 15(.. LineV-13 

'•^ tr. ai l.>3. Line 16-20 

""^ Tr. at 1<)4, Line 1-12 
02/16/2011 16:1GFAX 2024935142 FAA •> QM S 2)012/017 

disproportionately large for the minor violation at its core. This cannot stand. 'I he FAA's 

priipo.sed penally of SiS4,000 should be declined in its entirely. 

fMTf:Dlhis 14'" day of February, 2011, 

Todd C. Hmerson "^ 

Attorney for SkyWest Airlinea 

12 
02/16/201 1 16:1 6 FAX 2024935142 FAA •» DMS 21013/01 7 

CKRllFK A L i : OF SERVICE 

I he undersigned hereby certifies that on thisj.4^' day of February, 201 1, a true and 

correct copy of the foregoing RKSPONDKNT^S POST IIEARriNG BKIKF was served as 

follows: 

The Honorable Richard C. Goodvvin 

Office of Hearings. M-20 

1200 New Jersey .Avenue, S.E. 

Fast Building Ground Floor, Rm F12-320 

Washington, D.C. 20590 

[Fac.sitnile and Federal E-xprcsa I 

Federal Aviation Adniinislration 

i!00 Independence Avenue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wrighl Building- Suiie2WIOO0 

(Federal Expix's.sJ 

Scott R. Motris 

Federal Aviation .Administration 

Northwest Mountain Region. ANM-7 

1601 Lind Avenue S.W. 

Ronton, Washington 98057 

/Facsimile and Federal E.xpres^} 

\ 

/or/iaiina Baker f 
02/16/2011 16:16 FAX 2024935142 FAA * DMS 01014/017 

EXHIBIT A 
02/16/2011 16:16 FAX 2024935142 FAA DMS 2)015/017 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

National Policy 

ORDER 

2150.3B 

Effective Date: 

10/01/07 

SUBJ; _ FAA Compliance and Enforcement Program 

This ordtr contains policies, procedures, and gtudelines for the Federal Aviation Administration's 

compliance and enforcemeni program. The order also articulates tlie FAA's philosophy for using 

various remedie.?, including education, corrective action, informal action, remedial training, 

administrative action, and legal enforcement action, to address noncompliance with statutory and 

regulatory requirements enforced by the FAA. It provides for the public a written statement of the 

Administrator's policy (guidance for imposing sanctions for violations of such requirements. 

The order is used at all levels by agency peraomieJ who are engaged in the investigation, reporting, 

and processing of enforcement actions. It applies to all offices with regulatory re.sponsibilities. 

This revision of the order comprehensively updates policies, procedures, guidance, and assignments of 

responsibility. It reorganizes the order in a manner more useful for agency personnel and is available 

electronically to agency personnel and the public. The revision amends agency sanction guidance to 

confonrri to statutory changes resulting from Vision lOOCentury of Aviation Reauthorization Act aiid 

incorporates guidance into the agency's compliance and enforcement program order on policies and 

programs that have developed since the last compiehenijive order revision in 1988. Those include 

policie.s renting lo the F/VA's exerci.se of its authority to administratively assess civil penalties and 

guidance on the agency's voluntary safety program.?. 

A workgroup of agency personnel from the field and headquaners with extensive experience in 

statutory and regulatory enforcement reviewed the agency'.<i polit;ics and programs in this area to 

produce this comprehensive revision of tlie agency order on its compliance and enforcement program. 

M 

Robert A. Sttirg 

Acting Adminifilfator 

f)islribution: A-W.|;A-W (AT/PS/SlVf)-2;A-W (PP/AM/SF/ 

GC1FS/IA/VS)-3;A-XYZ (A T/AF/CS)-2;Z-X (A.<5/AM/GC/FS)-3; 

A-Y (AM/AR]OC)-3;A-Z (AM/AN/GC).3;A-FAC/FAClf CS-O; 

A-F AF/FA T/FIA-0(L TD);ZFS-,125 

Initialed By: AGC.300 
02/16/2011 16:16 FAX 2024935142 FAA DMS 1016/017 

10/01/07 2150.3B 

.^. Compliance and Eaforcemcnt Philosophy. 

a. Voluntary CompliaDcc. Civil aviation safety depends on voluntary adherence to legal 

requirements. 1"hercfore, the FAA administers programs to promote a clear awareness and 

understanding of the governing Statute and regulations. 

b. Education. FAA investigative personnel should take advantage of opportunities during 

their surveillance and inspection activities to strengthen a regulated person's understanding of 

the statutory and regulatory requirements. The FAA also prornotes education through public 

awareness programs and other special aviation educational etTorts. 

c. Surveillance and Detection. An important element of an effective compliance and 

enforcement program is the prompt discovery of noncompliance. Although the agency has 

programs to encourage self-disclosure, surveillance remains the primary method of detecting 

violations. Consistent with its statutory mandate, the FAA maintains a high level of surveillance 

of air carrier operations and manufacturing facilities. 

d. Notifying Persons of Potential Violations. In any situation where FAA enforcement 

personnel identify a potential violation, they take appropriate steps immediately to notify a 

responsible person who can lake appropriate action to prevent it. For example, FAA 

investigative personnel may counsel a regulated party and ensure that it takes immediate action 

to prevent a violation from happening, or ground aircraft under 49 U.S.C. § 44713(c) when air 

carrier aircraft are not in condition for safe operation. Any FAA employee who receives 

information about a crewmember's operation of an aircraft in violation of the FAA's alcohol and 

drug regulations must immediately contact and pass on that information to a flight standards 

inspector. If the crewmcmber is an air carrier employee, the inspector quickly notifies the air 

carrier's management of all relevant information aboul the matter so the air carrier can take 

appropriate action. The inspector requests the air carrier to help the FAA in its investigation, and 

if appropriate, to take action to ensure the crewmember does not serve on a tlight. 

e. Investigation and Reporting. FAA investigative personnel must conduct investigations 

promptly. They must gather, and accurately and completely report all facts, and conduct their 

investigations in an unbiased and focused manner. A violation report without all the facts only 

leads to delays that compromise the objectives of fair and responsive enforcement. An 

incomplete or inaccurate enforcement investigative report can mislead reviewing officials and 

HAA legal counsel and result in wrong or inappropriate actions being taken. 

f. FAA Responses to Violations and Purposes for Coinpli»nce and Enforcement 

Actions. FAA enforcement personnel must investigate and appropriately address every apparent 

or alleged violation. 

(1) Responses, fhe agency has a wide range of options available for addressing apparent 

violations, such as oral or written counseling; administrative action, including remedial training; 

legal enforcemcnl action; and referral for criminal prosecution. Under 14 C.F.R. § 13.11, FAA 

investigative personnel issue an administrative action in the form of either a warning notice or a 

letter of correction for an apparent violation. FAA legal counsel amends, su.$pends, modifies, or 

revokes certificates under 49 U.S.C. §§ 44105, 44106, 44709, 44710, 44726, 44924, and 46111; 

2-2 
02/16/201 1 16:1 6 FAX 2024935142 FAA •> DMS 21017/01 7 

e 

10/01/07 2150,3B 

seeks civil penalties primarily under 49 U.S.C. § 46301; seizes aircraft under 49 U.S.C. § 46304; 

and fssues judicially enforceable orders under 49 U-S-C. § 40113. FAA enforcement personnel 

also refer apparent violations to foreign governments or to the Department of Defen.se (DOD) for 

appropriate handling, and in cases where there is possible criminal conduct, to the Office of 

Inspector General (Old!) for criminal investigation. Generally, under 49 U.S.C, § 40113, FAA 

enforcement personnel lake actions believed necessary to carry oul the Administrator's siaiulory 

safety duties and responsibilities. Regulations governing the transportation of hazardous 

materials are enforceable by civji and criminal penalties, orders directing compliance, and 

equitable judicial relief (49 U.S.C. §§ 5121, 5122, 5123, and 5124). Regulations governing 

commercial space transportation arc enforceable by civil penalties and licensing actions (49 

U.S.C. §§70107,70115). 

(2) Purposes. FAA enforcement personnel take compliance and enforcement action to 

prevent future actions that would violate the regulations (for example, immediate corrective 

action afler counseling or a letter of correction; cease and desist orders; injunctions). They also 

take enforcement actions for remedial purposes (for example, administrative remedial training; 

immediate corrective action and comprehensive fixes under the voluntary disclosure reporting 

programs; certificate suspension pending demonstration of qualifications; or revocation for lack 

of qualification or competency). They also take enforcement actions to deter future violations by 

thfc subject of the enforcement action and those similarly situated (for example, punitive 

certificate actions or civil penalties). 

g- Fairness. To be effective, the agency's compliance and enforcement program must be 

fair and reasonable and should be perceived as fair by those subject to regulation. This does not 

and should not imply an unwillingness to apply the full force of statutory sanctions where 

warranted. It does encompass the right of an apparent violator to be given objective, evenhanded 

consideration of all circumstances surrounding the allegations before final action is taken. Il also 

requires good faith efforts to understand the apparent violator's position and lake it into account, 

as well as to apprise the apparent violator of the agency's position in a timely manner. 

h. Timeliness. 

(1) The agency's discovery of, and response to, violations should be timely. Delays in 

investigation or processing of enforcement investigative reports can adversely affect the 

effectiveness of the agency's compliance and enforcement program in several ways. Delays may 

let an unsafe condition continue if prompt corrective action is not taken. Delays also may 

de-emphasize the seriousness of a given violation and lessen the deterrent value of any 

enforcement action taken. The deterrent quality of enforcement action, and effective linking of 

the enforcement .sanction to objective change in compliance behavior, can be best realized if the 

FAA investigates diligently and promptly and administers the appropriate sanction within a 

rea.sonable lime period. If the allegations of violation are not sustained, any unwarranted delay 

in processing the case may impose an unjustified hardship. The time needed for investigation 

and processing will vary depending on the complexity of each case. Certain ca.ses, because of 

their effect on .safety, including the need for emergency action, will sometimes demand 

immediate involvement of the entire investigative and legal team to effect timely agency action, 

.someiimes in only a matter of hours or a few days. 

2-3