Todd C. Emerson, #8175 

444 South River Road 

St. George, Utah, 84790 

Telephone: (435) 634-3530 

Facsimile: (435) 634-3505 

RECEIVED 

APR 1 4 2014 

HEARING DOCKET 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

Sky West Airlines, Inc. 

REBUTTAL 

FAA Case No. 2011NM06005 

DMS No.: FAA-2012-0777 

Honorable Richard C. Goodwin 

Respondent, by its counsel, respectfully files this short Rebuttal to its Motion for 

Decision, filed on March 21,2014. 

I. An Inspection Check Not Required Prior To Flight Does Not Justify 19 

Penalties. 

The FAA arrives at its impressive penalty by claiming nineteen separate violations. 

But this ignores the fact the computer query could be performed at any time during the 

flight day, even at the end of the day, after all flights for the day were completed. It is a 

fiction to argue all nine flights completed on October 19 were retroactively unairworthy. .,"•· 

Indeed, each flight could properly be flown in reliance on the check performed the 

previous day. While Sky West has not contested that the missed queries are a regulatory 
violation, Sky West does not agree that the missed query on October 19 rendered the 

previously completed flights unairworthy. 

II. The Totality of the Circumstances Supports a Minimal Civil Penalty. 

This lapse, which was inadvertent, isolated and involved a redundant sensor on a 

comfort system is exactly the kind of civil penalty calculation that should be minimized 

under the "totality of the circumstances" factor. 1 Frankly, if this approach had been taken 

we would not be here now, but the FAA has preferred a blunt mathematical approach that 

simply multiplies an inflated number of violations by a set penalty amount. 2 

Sky West does not dispute that enforcement action is appropriate. But the 

malfunction involved a comfort system that can be deferred for up to 10 days (potentially 

1 00 flights) and the required query was not required pre-flight. The redundant sensor was 

also functioning the entire time but not communicating its status with the computer. This is 

the classic airplane "squawk" that needed no irmnediate attention from a mechanic, and 

once analyzed, was found to be operable. There is a violation, yes, but totality of the 

circumstances militates for a proportionate penalty to the minor, non-safety, lapse. 

1 In the Matter of Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 2008), p. 9. 

2 In the Matter of Empire Airlines, Inc., FAA Order No. 2012-10 (October 11, 2012), p. 17; see also, In the 

Matter of Stebbins Aviation. Inc., FAA Order No. 2006-3 (February 7, 2006), p. 5. 

FAA Case No. 2011NM06005/ DMS No. FAA-2012-0777 

REBUTTAL 

Page2 
III. Evidence of Corrective Steps Should Warrant Mitigation. 

Finally, the FAA attempts to suggest that evidence of Sky West's corrective steps is 

not properly admissible, even while it admits the existence of the corrective steps? 

Sky West offered the letter as affirmative evidence of its corrective steps, exactly as the 

FAA says is required, and which is permitted under the exceptions to Rule 408. In 

addition to Mr. Emerson's February 8, 2012letter, the mitigation steps were also outlined 

in Sky West's response to the FAA's Letter oflnvestigation and are part of the evidentiary 

The question here is not whether Sky West took corrective steps, the question is the 

weight those steps should be afforded in calculation of the civil penalty. Sky West took 

inunediate fixes when it recognized the inspection oversight, 5 as well as long-term 

broader-scope corrective steps. 6 These steps, evidence of which was offered to and 

accepted by the FAA, show a careful, thoughtful, and safety-compliant attitude. Whereas 

the FAA refuses to grant any credit for these steps, these comprehensive steps- as well as 

Sky West's prompt actions- should be recognized as warranting mitigation and resulting in 

a minimal sanction. 

3 Although the FAA complains that SkyWest's letter outlining its additional corrective steps (dated February 

8, 2012) is inadmissible to "prove or disprove the validity or amount of a disputed claim[,]" SkyWest points 

out that the letter was not offered for that purpose. Sky West offered the letter as affirmative evidence of its 

corrective steps, exactly as the FAA says is required, and which is permitted under the exceptions to Rule 

408. See Complainant's Rebuttal (March 27, 2014), p. 7. 

4 Complainant's Motion for Decision (January 30, 2014), Exhibit 2. 

5 See Complainant's Motion for Decision (January 30, 2014), Exhibit 2. 

6 Respondent's Rebuttal and Motion for Decision (March 21, 20 14), Exhibit B. 

FAA Case No. 2011NM06005/ DMS No. FAA-2012-0777 

REBUTTAL 

Page 3 
IV. Conclusion 

Sky West and the FAA agreed that there were no material facts in dispute, which is 

why both agreed to forego a hearing and instead elected to have this Court issue a decision 

based on each party's respective Motions for Decision. The factual circumstances of the 

violation and Sky West's corrective actions are acknowledged and agreed-to by the parties. 

All that remains is for this Court to consider the totality of the circumstances and assess an 

appropriate civil penalty. 

DATED this 11th day of April, 2014. 

Todd. C. Emerson 

Attorney for Sky West Airlines, Inc. 

FAA Case No. 2011NM06005 I DMS No. FAA-2012-0777 

REBUTTAL 

Page4 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this ll'h day of April, 2014, a true and 

correct copy of the foregoing REBUTTAL was served as follows: 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 00 

Via Federal Express 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El2-320 

Washington, D.C. 20590 

Via E-mail and Federal Express 

Jeffrey M. Harper, Complainant's Counsel 

FAA Office of Regional Counsel 

1601 Lind Ave., SW 

Renton, Washington 98057 

Via E-mail and Federal Express