Todd C. Emerson, #8175 444 South River Road St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505 

# RECEIVED APR 14 2014 

## HEARING DOCKET

UNITED STATES OFAMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

In the Matter of: SkyWest Airlines, Inc. REBUTTAL FAACase 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 onMarch 21,2014. 

### I. An Inspection CheckNot 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 endofthe day, after all flights for the day were completed. Itis a fiction to argue all nine flights completed on October 19 were retroactively unairworthy. .,"•· Indeed, each flight could properlybe flown in reliance onthe checkperformed the previous day. While SkyWest has not contested that the missed queries are a regulatoryviolation, Sky West does not agree that the missed query on October 19 rendered the previously completedflights unairworthy. 

### II. The Totality ofthe 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 ofcivil penalty calculationthat shouldbe minimized under the "totality ofthe circumstances" factor. 1 Frankly, ifthis approachhad beentaken
we would notbe here now, butthe FAA has preferred a blunt mathematical approach that simply multiplies an inflated number ofviolations by a setpenalty amount. 2 Sky West does not dispute that enforcement action is appropriate. Butthe malfunction involved a comfort systemthat canbe deferred for up to 10 days (potentially 100 flights) andthe required query was notrequired pre-flight. The redundant sensor was also functioning the entire time but not communicating its status withthe 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, buttotality ofthe circumstances militates for a proportionate penalty to the minor, non-safety, lapse.

1In the Matter of Eastern Air Center, Inc., FAA OrderNo. 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 StebbinsAviation. Inc., FAA Order No. 2006-3 (February 7, 2006), p. 5.
FAA Case No. 2011NM06005/ DMS No. FAA-2012-0777 REBUTTAL Page2

### III. Evidence ofCorrective Steps Should Warrant Mitigation. Finally, the FAA attempts to suggest that evidence ofSky West's corrective steps is not properly admissible, even while it admits the existence ofthe corrective steps? Sky West offered the letter as affirmative evidence ofits 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 SkyWest's response to the FAA's Letter oflnvestigation and are part ofthe evidentiary

The question here is not whether Sky West took corrective steps, the question is the weight those steps should be afforded in calculation ofthe civil penalty. SkyWest took inunediate fixes when itrecognized the inspection oversight,5 as well as long-term broader-scope corrective steps.6 These steps, evidence ofwhich was offered to and accepted bythe FAA, show a careful, thoughtful, and safety-compliant attitude. Whereas the FAArefuses to grant any credit for these steps, these comprehensive steps- as well as SkyWest's prompt actions- should be recognized as warranting mitigation and resulting in
aminimal 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 ofa disputed claim[,]" SkyWest points out that the letter was not offered for that purpose. Sky West offered the letter as affirmative evidence ofits 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 (March21, 20 14), Exhibit B. FAA Case No. 2011NM06005/ DMS No. FAA-2012-0777 REBUTTAL Page 3

### IV. Conclusion Sky West and the FAAagreed that there were no material facts in dispute, whichis why both agreed to forego a hearing and instead elected to have this Court issue a decision based on eachparty's respective Motions for Decision. The factual circumstances ofthe violation and SkyWest's corrective actions are acknowledged and agreed-to bythe parties. All that remains is for this Court to consider the totality ofthe circumstances and assess an appropriate civil penalty. DATED this 11th day ofApril, 2014.

Todd. C. Emerson Attorney for SkyWest Airlines, Inc.

FAA Case No. 2011NM06005 IDMS No. FAA-2012-0777 REBUTTAL Page4CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 

### ll'h day ofApril, 2014, a true and correct copy ofthe foregoing REBUTTALwas served as follows: FederalAviationAdministration 800 Independence Avenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk,AGC-430 Wilbur Wright Building- Suite 2Wl00 Via Federal Express The Honorable Richard C. Goodwin,Administrative LawJudge Office ofHearings, M-20 1200 New JerseyAvenue, S.E. East Building Ground Floor, Rm El2-320 Washington, D.C. 20590 Via E-mail andFederal Express Jeffrey M. Harper, Complainant's Counsel FAAOffice ofRegional Counsel 1601 LindAve., SW Renton, Washington 98057 Via E-mail andFederalExpress