JEFFREY M. HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

160 I LIND AVE., SW 

RENTON, WASHINGTON 98057 

TELEPHONE: (425)227-2161 

FACSIMILE: (425)227-1007 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

riECEI\lED 

APR - 1 2Ci4 

HEARING DOCKET 

In the Matter of: 

FAA Case No. 2011NM060005 

DMS No.: F AA-2012-0777 

Sky West Airlines, Inc. 

Honorable Richard C. Goodwin 

REBUTTAL TO RESPONDENT'S 

MOTION FOR DECISION 

Respondent asks this court to: 

• Consider the minimal safety risk posed by its admitted regulatory violations in 

selecting a sanction in the minimum range; 

1 

o Which Complainant did; 2 

• Select a starting point for its sanction calculation within that range, but below the 

middle of the range;3 

o Even though Chapter 7, ~ 5.b.4 of FAA Order 2150.3B""' ("Sanction 

Guidance") requires a sanction calculation to begin in the middle of the 

selected range;

4 

1 Respondent's Rebuttal and Motion for Decision,"' Pages 13-14 ("Even the FAA agrees there was a 

low degree of hazard related to the discrepancy and that the "minimum" violation category is 

applicable to this matter." Hyper!inks to cited documents are marked with"=>." 

2 Complainant's Motion for Decision,"' Pages 10-11 ("the choice of sanction range accounts for the 

mitigating factor of the relatively low degree ofhazard .... "). 

3 Respondent's Rebuttal and Motion for Decision,"' Page 1 0 ("Here, the appropriate starting point for 

the sanction calculation is below the midpoint of the~ range.") 4 FAA Order 2150.3B,"' Chapter 7, ~ 5.b.4 ("When determining a specific sanction amount with a 

range, FAA personnel begin with an amount in the middle of the range .... "). 
• Mitigate the sanction below the starting point on the basis of the minimal safety 

risk- 5 

' 

o Even although Complainant's sanction calculation addressed the minimal 

safety risk by selecting a sanction guidance range that is applicable to 

violations involving technical noncompliance, rather than a range for 

violations involving a risk to safety; 6 

• Grant additional mitigation on the basis of its affirmative defenses taking the form 

of purportedly corrective actions; 7 

o Even though Respondent has failed to meet its evidentiary burden to prove 

those actions, and those actions have at best a tenuous connection to the 

root cause of the violations Respondent identified; 8 

• Not consider Respondent's lengthy experience as a Part 121 operator in increasing 

the sanction;9 

o Even though the Sanction Guidance states "Certificate holders with 

greater levels of experience may be held to a higher standard "

10 

• Mitigate the penalty even further by treating the violations as one;

11 

o Even though statutory law provides that each ofRespondent'sjlights using 

the unairworthy aircraft constitutes a separate violation, and Respondent 

admits that the ranges found in its Sanction Guidance are for single 

. 1 t' 12 vzo a zons. 

5 Respondent's Rebuttal and Motion for Decision,"" Pages 9-10 ("As for the 'gravity of violation' 

factor, the FAA acknowledges there was a low degree of hazard because the affected component was 

determined to be operational-- yet it did not decrease the penalty accordingly ... "). 

6 Complainant's Motion for Decision,"' Pages 10-11 ("the choice of sanction range accounts for the 

mitigating factor ofthe relatively low degree of hazard .... "). 

7 Respondent's Rebuttal and Motion for Decision,"" Pages 10-13 ("C. Sky West Should Be Credited 

For Its Significant Mitigation Measures."). 

8 Complainant's Motion for Decision,"" Pages 9-10 (explaining why Respondent's actions do not , 

warrant mitigation). 9 Respondent's Rebuttal and Motion for Decision,"" Pages 9-10 ("There is no mandate that an airline 

be automatically assessed sanctions at the higher end of the range simply because it has existed for a 

decade or more."). 

1

° FAA Order 2150.3B,"" Chapter 7, ~ 4.c.l. 

11 Respondent's Rebuttal and Motion for Decision,"" Page 8 ("Altogether, the FAA has cited three 

regulations and 19 violations - despite only one isolated and inadvertent discrepancy present in the 

matter."). 

12 49 U.S. C. § 4630l(a)(2);"' Respondent's Rebuttal and Motion for Decision,"" Page 5 ("The ranges 

set forth in the FAA's Sanction Guidance are for single, inadvertent violations."). 

Rebuttal to Respondent's Motion for Decision 

In the Matter ofSky\VestA.irlines, Inc. 

FAA Case No. 201 JNM060005, DMS No. FAA-2012-0777 

Page 2 of I 0 

JEFFREY M. HARPER, F AAAT!'ORNEY 

TEL: (425) 227-2161; FAX: (425) 227-.1007 
In contrast, for the reasons discussed in its Motion for Decision, Complainant seeks a 

sanction of$142,500 that is consistent with both the facts of this case and its published 

Sanction Guidance. 

Because Respondent has conceded the issue of liability, this Rebuttal is limited to the 

question of sanction. Respondent's Rebuttal and Motion for Decision,"" Pages 3 and 4. 

Statement of Facts 

Respondent concedes the question ofliability, admitting that it l) failed to perform a 

required once-daily verification on two days, and 2) operated the aircraft on 17 flights 

when the verification had not been timely performed. Respondent's Rebuttal and Motion 

for Decision,"" Pages 313 and 4. 14 

On October 18, 2010, a Sky West flight crew reported a discrepancy in the maintenance 

logbook ofN822SK ("the aircraft"). Complaint""'\[ II.6, Answer""'\[ II.6. Sky West 

deferred the discrepancy on October 18, 20 l 0, using a provision of its Minimum 

Equipment List (MEL) that required Sky West to complete a once-daily verification of the 

system and to make an entry to that effect in the aircraft logbook. Complaint""'\['\[ II.7 

and 8, Answer""'\['\[ II.7 and 8. Sky West subsequently operated the aircraft on 17 flights 

over the course of two days when the actions required by the MEL had not been taken. 

Complaint""'\[ II.11; Respondent's Rebuttal and Motion for Decision,"" Pages 2-4; 

Respondent's Response to Complainant's Initial Discovery Request,"" Responses to 

Interrogatory No.9, Request for Production No. 3, and Requests for Admission Nos. 6-9. 

Respondent has the ability to pay a $142,500 civil penalty. Respondent's Response to 

Complainant's Initial Discovery Request,"" Response to Request for Admission No. 3. In 

its fiscal year ending December 31, 2010, Respondent had gross revenues in excess of 

$100 million. Respondent's Response to Complainant's Initial Discovery Request,"" 

Response to Requests for Admission Nos. 1 and 2. 

13 "Still, it is important and obligatory to follow the MEL, no matter how minor the squawk, and 

Sky West has a gap in its records .... Sky West has previously stipulated to the facts set forth in the 

Complaint .... Sky West acknowledged that a once-daily maintenance check that was required to be 

performed on the aircraft as a result of a fault indication on October 18, 2010, was not completed on 

October 19 and 20." 

14 "Subsequently, Sky West agreed to limit the matter to the issue of sanction .... " 

Rebuttal to Respondent's Motion for Decision 

In the J\{atter of Sky West /Urlines, Jnc. 

FAA Case No. 2011NM060005, DMS No. FAA-2012-0777 

Page 3 of 10 

JEFFREY M. HARPER. FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
Argument 

Standard for Decision 

The FAA has the bmden of establishing its proposed civil penalty is appropriate. In the 

Matter of Luxemburg, FAA Order No. 1994-18"" at 6 (June 22, 1994). The standard is 

based on 14 C.P.R. § 13.224(a)"" which states the bmden of proof is on the Agency 

except in the case of an affirmative defense. However, the effect mitigating factors, such 

as corrective action and financial hardship, have on a sanction calculation are affirmative 

defenses. In the Matter of M & R Helicopters, LLC, FAA Order No. 2013-4"" at 21 

(September 5, 2013), In the Matter of Seven's Paint & Wallpaper Co., FAA Order 

No. 2001-6"" at 5 (May 16, 2001), In the Matter of Conquest Helicopters, FAA Order 

No. 1994-20"" at 3-4 (June 22, 1994). The bmden of proving an affirmative defense is on 

the party asserting that defense. 14 C.P.R. § 12.224(c)."" 

Complainant seeks an appropriate penalty in light of the total number of 

violations in this case. 

As Respondent acknowledges, the FAA is asserting a total of 19 violations-two 

violations based on Respondent's fail me to accomplish a required once-daily check on 

two days, and 17 violations based on Respondent's operation of the aircraft on those two 

days for 17 separate flights. 

Respondent argues that tllis case is one where there was a single instance of 

noncompliance, analogizing to In the Matter ofGoJet Airlines, LLC. Respondent's 

Rebuttal and Motion for Decision,""' Page 7. This case is readily distinguishable from 

GoJet. In GoJet, there was only one failme to abide by the Minimum Equipment List 

(MEL). In the Matter ofGoJet, FAA Order No. 2012-5"" at 4 (May 22, 2012). Following 

the fail me to comply with the MEL, GoJet operated the aircraft on a single flight, after 

which it retmned the aircraft to an airworthy condition. Id. 

In contrast, this case presents two failmes by Respondent to comply with the MEL--{)nce 

on October 19, when Respondent's personnel failed to perform the required once-daily 

verification, and once on October 20, when Respondent's personnel again failed to 

perform the required once-daily verification. Unlike GoJet, this case involves 17 flights, 

rather than one. Thus, this case involves 19 instances of noncompliance, rather than the 

two in GoJet. Even assmning, as Respondent argues, that 14 C.F.R. §§ 121.153(a)(2) 

and 121.605 are residual to§ 119.5(g), there are still19 independent actions or omissions 

warranting a penalty for a total of 19 violations: 

• Failme to accomplish the required verification on October 19 (A violation of 

14 C.P.R.§ 119.5(g)). 

Rebuttal to Respondent's !\'lotion for Decision 

In the Matter of Sky West Airlines, Inc. 

FAA Case No. 2011NM060005. DI\1S No. FAA-2012-0777 

Page 4 of 10 

J.EFF1<.EY M. HARP.ER, FAA i\JTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
• Failure to accomplish the required verification on October 20 (A separate 

violation of 14 C.F.R. § 119.5(g)). 

• Nine operations of the aircraft on October 19, when the required verification was 

not accomplished on that flight day (Nine separate violations of 14 C.F .R. 

§ 119.5(1)). 

• Eight operations of the aircraft on October 20, when the required verification was 

not accomplished on that flight day (Eight separate violations of 14 C.F.R. 

§ 119.5(1)). 

Complainant's Motion for Decision,"" Exhibit 4. 15 

Respondent asserts this case is one where there was a single instance of noncompliance 

resulting in multiple violations, citing to Chapter 6, 'j6.c of the Sanction Guidance to 

argue that Complainant has "compounded multiple violations on a single inadvertent 

error." Respondent's Rebuttal and Motion for Decision,"" Pages 3, 5, and 7. This 

argument fails because it is predicated on there being only a single error at issue, rather 

than two erroneous failures to completed the required verification and 17 erroneous 

flights of an unairworthy aircraft. 

Each of the 17 flights presented Respondent with another opportunity to review the 

aircraft log. Each of the 17 flights presented Respondent with another opportunity to 

recognize that the once-daily verification had not been completed. Each of the 17 flights 

presented Respondent with another opportunity to complete that check. On each of the 17 

flights, Respondent failed to take the required action. And, statutorily, each of the 17 

flights was a separate violation. 49 U.S.C. § 46301(a)(2).""16 

A provision of the Sanction Guidance more relevant to Respondent's argument is found 

at Paragraph 7. Under that paragraph, Complainant does grant "special consideration for 

numerous multiple violations [the flights of the affected aircraft] resulting from an initial 

act or omission [the failure to perform the required verification]." Under that procedure, 

an appropriate penalty for the numerous multiple violations is determined by applying 

15 The MEL requires completion of the check "once per flight day." Respondent's Rebuttal and 

Motion for Decision,"' Exhibit A. A "flight day" is one during which "at least one flight is initiated for 

the affected aircraft." Complaint"" 1J Il.9, Answer"" 1J II.9 The MEL does not specifY when during the 

day the check could have been performed. Thus, Respondent could have avoided the violations by 

either not operating the aircraft at all on October 19 or 20, or performing the check at any time on the 

19th or 20th-to include immediately following the last flight on the 19th and before the first flight on 

the 20th. 

16 "A separate violation occurs under this subsection ... for each flight involving the violation ... " 

Rebuttal to Respondent's Motion for Decision 

Jn the Matter of Sky West Airlines, Inc. 

FAA Case No. 2011NM060005, DMS No. FAA-2012-0777 

Page 5 of 10 

JEFFREY M. HARPER, FAA AlTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
Chapter 7, "If 7.b-d of the Sanction Guidance."" Had Complainant followed that course, 17 

the absolute minimum penalty for this case would be $200,000, rather than the $142,000 

Complainant actually seeks.18 

Assessing a sanction based on a total of 19 violations is entirely appropriate~that's how 

many there were. Calculating the sanction in this fashion benefited Respondent relative to 

an appropriate sanction under Respondent's theory of the case. 

The FAA assessed an appropriate penalty for each violation. 

As discussed in Complainant's Motion for Decision, the FAA followed its Sanction 

Guidance in arriving at the sanction in this case. Complainant's Motion for Decision,"" 

Pages I 0-ll. Consistent with its Sanction Guidance, it did not, for various reasons, 

consider Respondent's actions following the receipt of the FAA's Letter of Investigation 

as mitigating. Complainant's Motion for Decision,"" Pages 8-10. Respondent's actions, 

for the most part, lacked any connection to the underlying root cause of the violations that 

Respondent identified and thus do not warrant mitigation. Id. To the minimal extent there 

might have been a connection, Respondent actions were reactions to the FAA's 

investigation, rather than swift and comprehensive measures to prevent future violations. 

In contrast, Respondent states that the appropriate starting point for the sanction 

calculation in this case is "below the midpoint of the range." Respondent's Rebuttal and 

Motion for Decision,"" Page 10. Respondent cites no statute, regulation, case, policy, or 

other authority for the proposition that the starting point for a sanction calculation is 

below midrange. While Respondent cites regularly to the Administrator's Sanction 

Guidance"" in making its argument, nowhere does Respondent cite to Appendix B, 

"If 3 .c,which states the "middle of each sanction range would be for a single violation 

without aggravating or mitigating factors." Nor does Respondent address Chapter 7, 

"If 5.b.3, which reads: "FAA enforcement personnel begin with an amount in the middle of 

the range .... " 

Respondent then claims Complainant failed to give appropriate weight to its purported 

corrective action~an affirmative defense on the question of sanction. See, e.g., In the 

Matter ofM & R Helicopters, LLC, FAA Order No. 2013-4"" at 21 (September 5, 2013), 

17 Since fue sanction, calculated on a per-violation basis, is less fuan $200,000, following the "special 

consideration" provision would arbitrarily and capriciously increase the sanction to $200,000, 

resulting in the "disproportionately harsh" sanction that provision is intended to prevent. Sanction 

Guidance,"" Chapter 7, ~ 7. 

18 Sanction Guidance,"" Chapter 7, Table 7-1 provides that for a Group I large business such as 

respondent, fue penalty range is from $200,000 to $500,000, depending on the nature offue violation. 

Rebuttal to Respondent's 1.'1otion fOr Decision 

Jn the Matter of Sky West Airlines. Inc. 

FAA Case No. 20l!NM060005. DMS No. FAA-2012-0777 

Page 6 of 10 

JEFFREY M. HARPER, FA ... A_ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
In the Matter of Seven's Paint & Wallpaper Co., FAA Order No. 2001-6"" at 5 

(May 16, 2001), In the Matter of Conquest Helicopters, FAA Order No. 1994-20"" at 3-4 

(June 22, 1994) (mitigating factors of financial hardship and corrective action are 

affirmative defenses which must be proved by a preponderance of the evidence). 

Respondent pled the issue accordingly. Answer,"" Affirmative Defenses,~ 1 (alleging the 

penalty is excessive); Respondent's Response to Complainant's Initial Discovery 

Request,"" Response to Interrogatory No.7 (Respondent took corrective action which it 

argues warrants mitigation). As an affirmative defense, the burden of proof rests with 

Respondent to show that its purported corrective action warrants a reduction in sanction. 

14 C.F.R. § 13.224(c)."" 

In support of its affirmative defense, it provided a list of five measures it took as 

corrective action. Respondent's Rebuttal and Motion for Decision,"" Page 10. To carry its 

burden of proving its corrective action warrants mitigation, Respondent must provide a 

preponderance of "sufficient, specific evidence of swift or comprehensive corrective 

action." 14 C.F.R. § 13.223; Seven's Paint & Wallpaper Co.""' at 6, citing In the Matter of 

Mauna Kea Helicopters, FAA Order 1997-16"" at 11 (May 23, 1997). While Complainant 

does not dispute that Respondent took those actions, it asserts those actions were 

corrective and do not warrant mitigation-an issue upon which Respondent has the 

burden. Respondent has failed to offer any evidence; much less a preponderance of 

reliable, probative, and substantial evidence; that its alleged corrective action was swift or 

comprehensive warranting reduction of the proposed penalty. Instead, Respondent relies 

on conclusory statements in its brief and an inadmissible letter from its counsel dated 

February 8, 2012. 19 Respondent's Rebuttal and Motion for Decision,"" Pages 10-11. 

Even assuming Respondent had presented evidence that its actions warrant mitigation, 

Complainant has previously explained why those actions do not warrant mitigationchief among them being that most of its actions bear no relation to the root cause of the 

violations that Respondent identified, and, because Federal Aviation Regulations require 

Part 121 carriers to have sufficient qualified personnel to ensure safety, the Respondent's 

actions should have been taken before, not after, the violations. Complainant's Motion for 

Decision,""' Page 9. Corrective action that does nothing more than bring a violator into 

compliance with the regulations is not mitigating. Sanction Guidance,"" Chapter 7, ~ 4.m. 

19 Opposing Counsel's letter notes that it is "for the purposes of settlement." Discussions regarding 

settlement are "not admissible--Dn behalf of any party--either to prove or disprove the validity or 

amount of a disputed claim." Fed. R. Evid. 408."" 

Rebuttal to Respondent's Motion fOr Decision 

In the :r:vlatter ofSky\Vest Airlines, Inc. 

FAA Case No. 2011NM060005, DMS No. FAA-2012-0777 

Page 7 of 10 

JEFFREY M.l-IARPER, FAA ATTORl,rEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
To summarize: 

• Four out of five actions Respondent seeks mitigating credit for have no bearing on 

the root cause of the violations Respondent identified; 

• Even if Respondent's actions were related to the root cause of the violation, 

Respondent has failed to present any evidence of how those actions would correct 

the root cause; 

• Even if Respondent were to produce evidence, the effect of those actions on the 

sanction is limited under Complainant's Sanction Guidance as Respondent's 

actions were prompted by the FAA's Letter ofinvestigation; and 

• Respondent was required to take many ofthose actions before the violations 

occurred. 

Undoubtedly, Respondent took the actions it said it did. Those actions do not warrant 

mitigation of the sanction proposed by Complainant. 

The FAA considered the low risk to safety in its selection of a sanction range from 

its Sanction Guidance table. 

Respondent argues that the FAA failed to take into account the low degree of hazard 

presented by the violations in this case. Respondent's Rebuttal and Motion for Decision,"" 

Pages 9-1 0. And yet, contradictorily, Respondent concedes that the FAA took this factor 

into account when it selected the minimum range provided for by the Administrator's 

Sanction Guidance."" Appendix B, Figures B-1-l-1 and B-l-c-2 provide that the 

appropriate sanction for violations involving "technical non-compliance" and "technical 

non-conformity to [type certiftcate ]" is in the "minimum" range. 

Had safety been an issue, Figures B-1-l-2 and B-1-c-3 would have been more appropriate. 

Those provisions provide an appropriate range where there is "likely potential or actual 

adverse effect on safe operation" and "non-conformity to [type certificate] that may have, 

or has, adverse effect on safe operation. Both of those provisions provide for a "moderate 

to maximum" civil penalty. 

Thus, when choosing an appropriate sanction based on Figures B-1-l and B-1-c of the 

Sanction Guidance, Complainant must inherently consider the safety implications of the 

alleged violations. By electing to assess a sanction based on Figures B-1-l-l and B-l-c-2, 

as Complainant did here, the mitigation warranted by the minimal safety risk of the 

violations has been accounted for. 

Rebuttal to Respondent's Motion for Decision 

In the _l\1a.tter of Sky West Airlines, Inc. 

FAA Case No. 2011NM060005, DMS No. FAA-2012-0777 

Page 8 oflO 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
Complainant selected a sanction range that accounts for the minimwn safety risk 

presented by these violations. Despite this fact, Respondent asks this court to give them 

double credit by reducing the sanction within the range for violations involving no safety 

risk. 

Conclusion 

Complainant seeks a sanction that is consistent with the facts of this case and its 

published Sanction Guidance. Respondent seeks mitigation of that sanction on grounds 

that are without basis in either law or fact. For the reasons stated above, the FAA 

respectfully requests that this court grant its Motion for Decision, and enter an decision 

finding Respondent in violation of 14 C.F.R §§ 119.5(g), 119.5(1), 121.628(a)(5), 

121.605, and 121.153(a)(2), an imposing a sanction of$142,500, as alleged in the 

complaint. There are no genuine issues of material fact to be litigated. 

Respectfully submitted this 27th day of March, 2014. 

Rebuttal to Respondent's Motion fOr Decision 

In the _Matter of Sky\Vest Airlines, Inc, 

FAA Case No. 2011NM060005, DMS No. FAA-2012-0777 

Page 9 of 10 

JEFFREY M. HARPER. F AJ\ ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Rebuttal to Respondent's Motion for Decision has been 

served via facsimile and Certified Mail- Return Receipt Requested this date, to the 

following: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

Fax: (202) 366-7536 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Fax: (202) 493-5142 

Todd Emerson, Esq. 

Sky West Airlines, Inc. 

444 South River Road 

St. George, UT 84790 

Fax: ( 435) 634-3505 

Dated this 27th day of March, 2014. 

Office ofRegional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, W A 98057 

( 425) 227-2164 

Rebuttal to Respondent's _Motion fOr Decision 

In the Mstter of SkyV/est Airlines, Inc. 

FAA Case No. 2011N1'v1060005. DM.S No. Fi\A-2012-0777 

Page 10 oflO 

JHTREY M, HARPER. FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007