RECJ=S 0' 

U.S. DEPARTMENT OF TRANSPORTATION L- B 

FEDERAL AVIATION ADMINISTRATION SEP 2 5 20!5 

----------------------------------------------------------x EAR 11\J G DOCKET 

FEDERAL AVIATION 

ADMINISTRATION 

Complainant/ Appellant, 

V. 

SKYWEST AIRLINES, INC. 

Respondent/ Appellee. 

----------------------------------------------------------X 

Docket No. 2011NM06005 

FDMS No. FAA 2012-0777 

BRIEF OF RESPONDENT/APPELLEE 

SKYWEST AIRLINES 

The Respondent, SkyWest Airlines, Inc. ("Respondent" or "SkyWest") hereby files its 

Responsive Appellee Brief requesting that the Initial Decision issued by Administrative Law 

Judge Richard C. Goodwin (the "ALI") assessing a civil penalty of $11,998 against Sky West be 

upheld and affirmed. The ALI correctly determined the appropriate civil penalty based on the 

totality of the circumstances, applicable sanctions guidance, precedent, and policy. The appeal 

of the Federal Aviation Administration ("Complainant" or "FAA'') should therefore be denied. 

I. STATEMENT OF THE FACTS 

The operative facts are undisputed and the ALI summarized them in his Initial Decision. 

On October 18, 2010, the crew of operating Sky West's Bombardier CRJ-900 aircraft, registered 

as N822SK (the "Aircraft") recorded a fault indication in the Aircraft Maintenance Log 

("AML"). The indication was a "PACK FAULT" status message, which referred to a message 

communicating the status of one of the "pack discharge pressure sensors" that corresponded to 

one of the two redundant cabin air conditioning systems of Aircraft. According to the applicable 

procedures in item 21-51-4a of the minimum equipment list ("MEL"), maintenance of the item 

could be deferred for later investigation and correction, if necessary. To satisfy the deferral 
requirements of the MEL, either flight crew or maintenance personnel were required to (i) query 

the maintenance data computer ("MDC") once per flight day to verify operation of the pack 

discharge pressure sensor, and (ii) make a corresponding entry in the AML. (See lnitial Decision 

at 8-9). 

In accordance with the MEL, the Aircraft was allowed to continue operations as long as 

the once daily manual verification of the sensor was completed and logged. On October 18 and 

21, the MDL was queried, the operation of the pack discharge pressure sensor was verified, and 

the required AML entries were made. The required AML entries were not made on October 19 

and 20. On October 21, the MEL 21-51-4a procedure was completed. The pack discharge 

pressure sensor was always functioning normally. The fault occurred on one chmmel, of a dual 

channel system, that was not communicating with the Aircraft's computer. The sensor was 

cleared in accordance with the Aircraft's maintenance manuals and no further daily checks of it 

were required. The air conditioning in the Aircraft was always functioning. If it had not been 

functioning, the computer would have indicated a "fail" message. (See id. at 9). 

The Respondent operated the Aircraft in commercial operations on October 19, 20, and 

21. It flew seventeen cycles beginning on October 19 through closure of the MEL item on 

October 21. (Id.) 

The Respondent admitted that the AML entries required by MEL 21-51-4a were not 

made on October 19 and 20. The Complainant did not introduce evidence or attempt to mgue 

that the failure to make these entries was intentional or anything other than an inadvertent 

oversight. The record contains no evidence of any safety issues arising from this event. 

II. THE ALJ'S FINDINGS 

As a result of the parties' stipulation as to the facts and their joint agreement that no 

hearing was necessary, the ALJ decided this matter on the basis of written submissions. 

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The Complainant alleged that Respondent had violated the following sections of 14 

C.P.R.: § ll9.5(g) (operating in violation of OpSpecs); § 119.5(1) (operating under Part 121 in 

violation of OpSpecs); § 12l.628(a)(5) (taking off an airplane with inoperable equipment 

without complying with MEL conditions);§ 121.605 (dispatching an aircraft that was not 

airworthy); and§ l21.153(a)(2) (operating an aircraft that was not airworthy). The Complainant 

argued that each of seventeen flights the Aircraft made on October 19 and October 20 was a 

separate an independent violation of the regulations. The Complainant sought a civil penalty in 

the amount of$142,500. 

By written Initial Decision dated April 22, 2015, the ALJ held that Respondent had 

violated 14 C.P.R.§§ 119.5(g), 119.5(1), 121.605, and 121.153(a)(2). He found that the 

Complainant did not carry its burden of proof on 14 C.P.R. § 12l.628(a) because Complainant 

failed to prove that the Aircraft took off with inoperable equipment installed. The ALJ assessed 

a civil penalty in the amount of$11,998 for two violations of§ 119.5(g)- operating in violation 

of OpSpecs by failing to make AML entries of the required manual verification of the sensor on 

October 19 and 20,2010. 

In determining the penalty amount, the ALJ expressly applied the framework of P AA' s 

sanction guidance, Order 2150.3B, to the undisputed facts. He determined that a civil penalty of 

$11,998 was more appropriate than the amount sought by the Complainant because it "more 

accurately reflects the totality of the circmnstances surrounding the violations." (Initial Decision 

at 15). He observed that the evidence did not support the Complainant's proposed penalty, 

which he found "would be an excessive penalty in the circumstances of this case and in effect 

compounds the sanction." (/d. at 14-15). The ALJ also found that the Complainant failed to 

meet its burden of justifying the amount of the civil penalty it sought. (/d. at 14): 

Here, the P AA has failed to explain to the undersigned, either through 

witnesses or in its written closing argument, exactly how it used its 

sanction guidance to arrive at a figure of$142,500. By failing to explain 

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(Jd.) 

its proposed sanction adequately, the FAA in effect asks the undersigned 

simply to trust Complainant that its proposed sanction was appropriate. 

The ALI made the following findings, which fo1med the basis of his determination that a 

civil penalty in the amount of$11,998 was warranted: 

• "the violations were neither careless nor reckless" (id. at 12); 

• "there were no aggravating factors, but [] there were mitigating factors" 

(id.); 

• "the violation was inadvertent in that it was the result of both inattention 

and lack of purposeful choice" (id. at 13); 

• "the violations were not deliberate" (id.); 

• the Respondent's "lengthy experience as an air carrier" did not warrant a 

sanction above the midpoint of the sanctions range (id.); 

• the "FAA's own analysis argues for a more reasonable civil penalty" than 

the one it sought (id.); 

• the Respondent was "cooperative," "admitted the violations," and "took 

swift and immediate corrective action" (id.); 

• "there was no threat to safety" (id.); and 

• there was "no evidence to suggest" that Respondent "did not adhere to the 

highest standard of care" or that its personnel "did not adhere to the 

highest safety standard" (id.). 

Ill. ARGUMENT 

The ALI acted well within his discretion to reject the sanction sought by the 

Complainant, which was patently excessive and failed to take into account the totality of 

circumstances. The component at the center of this matter, one of two redundant "pack 

discharge pressure sensors" in the redundant air conditioning systems, did not fail. A "fault" 

occurred on one of two channels that reports the sensor's status to aircraft's computer. The other 

channel was always working and indicting to the crew that the sensor was operable. Thus, tl1e 

MEL required personnel to take over the redundant function of the faulty second channel and 

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manually check the sensor's operation, once a day, and record the check, which they did on 

October 18 and 21. They failed to record the check on October 19 and 20, but the sensor itself 

functioned, was backed up a redundant system, and the air conditioning system itself functioned 

properly the entire time. The Respondent enacted robust corrective actions to modify its 

processes to ensure that the failure to log such checks would not happen again. 

On these facts, the Complainant sought to impose a penalty of $142,500. This amount 

reflected an inappropriate attempt to compound sanctions. Moreover, the Complainant failed to 

show the ALJ that it was consistent with the FAA's own sanction guidance. 

This dispute centers on the question of what constitutes an appropriate civil penalty under 

the facts stipulated by the parties, in a matter where it is agreed that no safety issue was raised 

and the noncompliance resulted from an inadvertent, isolated event. The Complainant ultimately 

has the burden of establishing that its proposed civil penalty is appropriate to the alleged 

violation. 1 A sanction proposed by the FAA is "no more than a proposal or a recommendation to 

the ALJ."2 The Complainant must show that it considered the seriousness of the violation and 

the totality of the circumstances, and prove to the ALJ how it used the sanction guidance to 

arrive at its proposal? The Complainant must also prove the existence of aggravating factors and 

must show how it used aggravating or mitigating factors to adjust the suggested sanction. Here, 

the Complainant did not meet its burden. 

The appropriate sanction must be based on a totality of the circumstances, 4 including the 

nature, extent, and gravity of the violation, degree of culpability, history of prior violations, 

1 In the Matter of Luxemburg, FAA Order No. 1994-18 (June 22, 1994), p. 6. 

2 In the Matter of Eastern Air Center, Inc., FAA Order No. 2008-3 (Jan. 28, 2008), p. 8. 

3 Id.; see also In the Matter ofWarbelow 's Air Ventures, Inc., FAA Order 2000-3 (February 3, 

2000), p. 19. 

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

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financial situation, and other matters as justice may require. 5 The ranges set forth in the FAA's 

sanction guidance are for single, inadvertent violations.6 An inadvertent violation exists where 

the violation is a "single, isolated departure from compliance" with the regulation7 Evidence of 

swift or comprehensive corrective action must be considered as a mitigating factor. 8 The 

Administrator has given significant weight to respondents' efforts to ensme that a violation will 

not reoccur

9 Where remedial corrective action was not considered in the FAA's proposed 

sanction, it should be considered by the ALJ in his initial decision. 10 

The Complainant in this case failed to follow its own guidance and the applicable 

authorities when formulating its proposed civil penalty. It disregarded the totality of the 

circumstances and refused to consider the Respondent's corrective actions. In contrast, the ALJ 

meticulously applied the framework of the sanction policy contained in FAA Order 2150.3B, 

FAA Compliance and Enforcement Program (effective October 1, 2007). The ALJ correctly 

analyzed this matter in light of the totality of the circumstances and took into account the 

Respondent's corrective actions as mitigating factors. 

Simply put, the ALJ calculated the civil penalty correctly and the Complainant did not. 

The standard of review in any appeal from an ALJ decision is whether: (i) each fmding of fact is 

supported by a preponderance of reliable, probative, and substantial evidence; (ii) each 

conclusion of law is made in accordance with applicable law, precedent, and public policy; and 

5 In the Matter ofGoJet Airlines, LLC, Initial Decision (May 20, 2011), p. 8; quoting Folsom's Air 

Service, Inc., p. 11. 

6 Eastern Air Center, p. 9. 

7 In the Matter of Pinnacle Airlines, Inc., Docket FAA-2009-0180, Initial Decision (December 1 I, 

2009), p. I 9. 

8 In the Matter of American Air Network, Inc., FAA Order No. 2006-5 (Feb. I 0, 2006), p. 7. 

9 In the Matter of AirtranAirways, Inc., Docket No. FAA-2010-0193, Initial Decision (June 23, 

2010), p. 14. 

10 Id., p. 15. 

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(iii) the ALI committed any prejudicial errors that suppmi the appeal. 11 Here, the operative facts 

were undisputed. All of the ALI's legal conclusions were in accordance with applicable law, 

precedent, and public policy, and the Complainant has not shown that the ALI committed any 

prejudicial errors. Accordingly, the ALI's opinion should be sustained. 

A. THE ALJ DID NOT ERR IN REFUSING TO FIND THAT SKYWEST TOOK 

OFF N822SK WITH INOPERABLE EQUIPMENT IN VIOLATION OF 14 C.F.R. 

§ 121.628(a). 

As an initial matter, the Complainant takes issue with the ALI's determination that the 

Complainant failed to prove that SkyWest operated the Aircraft in violation of 14 C.P.R.§ 

121.628(a). The ALI's finding, however, was well within his discretion. The Rule provides, in 

pertinent part, that "No person may take off an airplane with inoperable instruments or 

equipment installed unless ... (5) the airplane is operated under all applicable conditions and 

limitations contained in the Minimum Equipment List. ... " The ALJ found that the 

Complainant failed to carry its burden of proof by a preponderance of evidence that any 

equipment was inoperable. (Initial Decision at 1 0). This finding was consistent with, and 

supported by, the undisputed facts. 

The sensor in question was functioning normally but was not commtmicating over one of 

two redundant charmels. Therefore, the MEL required the operator to interrogate the computer 

once a day to verify that the sensor was operative, as follows: 

System redundancy may be degraded as indicated by "L PACK P AULT" and/or 

"R PACK PAUL T" status messages provided: 

(1) Associated pack discharge pressure sensor(s) is verified operative once each 

flight day, and 

(2) Automatic Mode of the associated Cockpit/Cabin Temperature Control 

System is operative and associated MAN mode is not selected. 

11 See 14 C.P.R. 13.233(b). 

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(MEL 21-51-4a, Exh. A to Respondent's Rebuttal and Motion for Decision). Thus, the MEL 

provides that the purpose of the required query is to verify that the sensor in question is 

"operative." It is noteworthy that the MEL treats the condition indicated by a "PACK FAULT" 

message as a degradation in"[ s ]ystem redundancy" and not a failure. Indeed, the MEL permits 

deferment of maintenance so long as "Automatic Mode" of the air conditioning system 

associated by the relevant discharge pressure sensor is "operative;" i.e., so long as the air 

conditioning system functions in its normal automatic mode. 12 The communication fault 

message corresponds to one of two air conditioners that are for passenger comfort only. They do 

not cool any avionics or flight control systems. The check of the sensor required by the MEL 

was a redundant requirement to manually verify the operation of the sensor. There is no 

evidence in the record here that the sensor in question ever failed to operate. 

Personnel performed the required check and verified that the sensor was operative on 

October 18 and on October 21. They may have performed the check on October 19 and 20 but 

did not record it in the AML. Regardless of this gap in records, it is logical and reasonable to 

infer that, if the sensor was found to be operable on October 18 and 21, it was operable on 

October 19 and 20. This inference was confirmed by the fact that the sensor was ultimately 

found to be fully operable when the MEL item was closed out. Moreover, there is no evidence 

that the Aircraft's air conditioning and pressurization system failed to ftmction. If it had, the 

computer would have indicated a "fail" message, and not a sensor fault. 

On these facts, the ALJ was within his discretion to conclude that the Complainant failed 

to prove that a component on the Aircraft was inoperable. In its brief, Complainant devotes 

12 Moreover, the MEL's use of the plural ("and/or" and "pressure sensor(s)") indicates that not just 

one, but both of the pack discharge pressure sensors may trigger a "PACK FAULT" indication and 

maintenance may still be deferred. The sensor-reporting fault is so minor that the MEL ranks it as a 

category "C," which means it can be deferred for up to ten days without receiving attention from 

maintenance. See id. 

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considerable discussion to the purpose and use of a Minimum Equipment List. This discussion is 

both beside the point and misleading. The ALJ did find that Respondent failed to comply with 

the MEL because it failed to make the required logbook entries on October 19 and/or 20. (Initial 

Decision at II). However, because the Complainant had failed to prove with sufficient evidence 

the predicate fact that the sensor was inoperable, the ALJ properly determined, within his 

discretion, that the Complainant did not prove that a violation of 14 C.F.R. § 121.628(a)(5) took 

place. 

B. THE ALJ'S REFUSAL TO COUNT SEPARATE FLIGHTS OF N822SK AS 

INDEPENDENT VIOLATIONS FOR PURPOSES OF DETERMINING A 

SANCTION WAS APPROPRIATE AND IN ACCORDANCE WITH LAW. 

The ALJ properly fOlmd that separate flights of the Aircraft did not constitute 

independent violations and rejected the Complainant's attempt to over count the munber of 

violations that took place for purposes of determining the civil penalty. 

1. Applicable Law and Policy Do Not Require Each Flight ofN822SK to be 

Counted As a Separate Violation 

' The Complainant inaccurately describes the applicable authorities by suggesting that they 

mandated the ALJ to determine that each flight of the Aircraft constituted a separate violation of 

the regulations. 13 This is simply not the case. Rather, as stated in the FAA's own sanction 

guidance, "[ w]hen a single instance of noncompliance results in multiple violations of general 

and specific regulations involving the same or similar conduct, the FAA ordinarily does not 

compound the sanction .... " 14 As the Administrator observed in an appeal from an ALI's 

assessment of a civil penalty, the computation of a civil penalty "should not be done by 

13 See, e.g. Complainant's Brief at 9 ("[I]t is well-established by case law that eachflight during 

which an aircraft is operated in an unairworthy state constitutes a separate violation.") (emphasis in 

original). 

14 FAA Order 2150.3B, Chapter 7, ~ 6.c. 

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multiplying the sanction for a single violation by the number offlights."15 Instead, "judgment 

should be exercised in determining the seriousness of the violations and applying a sanction that 

will deter future violations by the violator or others similarly situated, i.e., the totality of the 

circumstances of the case should be considered. " 16 As discussed below, the ALI exercised his 

judgment in precisely this manner. 

In its brief, the Complainant cites 49 U.S.C. § 4630l(a)(2) for the proposition that a 

separate violation occurs for each flight involving the violation, and that the ALJ' s failure to find 

that each separate flight constituted an independent violation was "contrary" to the FAA's "civil 

penalty authority .... " 17 In making this argument, the Complainant selectively quotes from the 

statute and misstates its effect. The statute provides as follows: "A separate violation occurs 

under this subsection for each day the violation ... continues or, if applicable, for each flight 

involving the violation." 18 Thus, although the statute gives the FAA discretion to find a violation 

to have occurred for each flight, "if applicable," the statute does not mandate such a finding. 

Therefore, the Complainant's argument that, "when an operational violation stems from an 

underlying maintenance failure, the plain language of 49 U.S.C. § 46301(a)(2) dictates that each 

flight is an independent offense distinct from the requirement to adequately perform 

maintenance, and thns, requires the imposition of a civil penalty" 19 is an incorrect and 

misleading description of the statnte. It is also inconsistent with the FAA's own sanction 

guidance. 

15 In the Matter of Eastern Air Center, Inc., FAA Order No. 2008-3 (Jan. 28, 2008), at 9. 

16 Id., quoting FAA Order 2150.3BA, Appendix 4. 

17 Complainant's Brief at 10. 

18 49 U.S.C. § 4630l(a)(2) (emphasis added). 

19 Complainant's Brief at 12 (emphasis added). 

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2. The ALJ Properly Found that Separate Flights Were Residual Violations 

The ALJ found that separate flights of the Aircraft on relevant days were residual 

violations that were "dependent on the original failure to annotate the AML on two separated 

dates, October 19 and 20, 2010." (Initial Decision at 15). In doing so, he found that the failure 

to document checks in the logbook were the underlying violations and that "[t]here were no 

distinguishing factual elements between the AML notation violations and the seventeen (17) 

flights." (Id.) This determination was not erroneous, but rather was correct and appropriate 

based on the facts presented and the applicable authorities. 

A residual violation is one "that flows solely from a respondent's violation of another, 

independent regulation."20 Here, the ALJ found that the Complainant had not met its burden of 

proving that the Aircraft was operated with an inoperative component installed in it. (See Initial 

Decision at 10). Instead, each of the ALI's findings that the Respondent violated the regulations, 

including by operating an unairworthy aircraft, was based solely on the evidence that the 

Respondent failed to verify operation of the sensor and document the verification in the AML. 

(See id. at 10-11 ). Thus, each of the violations the ALI found arising from operation of the 

aircraft flowed solely from Respondent's operation of the Aircraft contrary to its OpSpecs. 

A separate sanction is not justified where a "residual violation is not based on any 

independent event."21 For each of the violations here, the failure to document the sensor check 

was the event that lead to the violation. There are no distinguishing factual elements that led to 

the violation of 14 C.F.R § 119.5(g) (operating contrary to OpSpecs) and the other regulations as 

to which the Complainant seeks to compound penalties. All of the violations are based on the 

same two events that the Complainant proved, and the Respondent admitted: failure to 

20 In the Matter of Rushmore Helicopters, Inc., FAA Order No. 2012-8 (Oct. 11, 2012). 

21 In the Matter of GoJet Airlines, LLC, FAA Order No. 2012-5 (May 22, 20 12), p. 24-25 (petition 

for review by respondent on unrelated issue denied, Docket No. 12-2719 (8th Cir., March 4, 2014)). 

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document a manual verification of the sensor's operation on two occasions. The Complaillant 

argues that Respondent's alleged violation of 14 C.F.R. § 119.5(g) requires proof of separate and 

distinct facts from those relating to the operation of individual flights. 22 This argument strains 

logic and wholly misses the mark. The violations of§ 119.5(g) resulted from the operation of 

the Aircraft where Respondent had failed to make two required logbook entries. This is the same 

factual predicate as the other alleged violations. The Complainant is attempting to charge the 

same error under five regulations, the elements of which differ slightly and sometimes not at all, 

rendering an excessive proposed penalty. 

Sky West has never argued that it did not fail to document in the AML that it followed the 

MEL or that it was not liable for sanction. The question below was whether Complainant 

needlessly compounded violations in an excessive manner for an error that all sides admit had no 

impact on safety. The ALJ was fully within his discretion to determine, based on the factual 

record before him, that violations arising out of separate flights were residual. 

C. THE ALJ'S CIVIL PENALTY ASSESSMENT OF $11,998 WAS IN 

ACCORDANCE WITH APPLICABLE LAW, PRECEDENT, AND PUBLIC 

POLICY. 

In a civil penalty case, the appropriate sanction is based on a totality of the 

circumstances,23 including the nature, extent, and gravity of the violation, degree of culpability, 

history of prior violations, financial situation, and other matters as justice may require. 24 This 

case is one in which the operative facts are not in dispute, there is no allegation that the 

Respondent acted intentionally, carelessly, or recklessly, and no evidence exists that a safety 

22 See Complainant's Brief at 12. 

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

24 In the Matter of GoJet Airlines, LLC, Initial Decision (May 20, 2011 ), p. 8; quoting Folsom's Air 

Service, Inc., p. 11. 

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issue resulted from the noncompliance. The ALI properly considered the totality of the 

circumstances and issued an award in line with the FAA's sanction guidance. 

In making his civil penalty calculation, the ALI meticulously applied the framework of 

Order 2150.3B to the undisputed facts before him. He specifically addressed and discussed the 

following factors in his Initial Decision: 

• Nature of violation; 

• Whether the violation was inadvertent or advertent; 

The certificate holder's level of experience; 

The attitude of the violator; 

The degree of hazard; 

• Action taken by employer or other authority; 

• 

• 

• 

• 

• 

Use of a certificate; 

Violation history; 

Ability to absorb sanction; 

Consistency of sanction; and 

Corrective action . 

(Initial Decision at 13-14). 

In considering these factors, the ALJ took into account the following factual fmdings, 

which the Complainant has not disputed: that the "violation was inadvertent;" "there was no 

threat to safety;" there was no evidence to suggest that the Respondent "did not adhere to the 

highest standard of care;" and that the Respondent "immediately responded to the violation by 

taking corrective action." (Initial Decision at 13-14). Assessing a relatively low civil penalty is 

appropriate where such factors are found to exist. For example, in the Eastern Air Center case, 

the FAA sought a civil penalty of $6,000 but the ALJ reduced it to $2,400. On appeal, the 

Administrator instead assessed an even lower civil penalty of $1,500. Citing the "lack of impact 

on safety," the Administrator determined that a $1,500 civil penalty was appropriate in light of 

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agency sanction policy, the evidence in the record, and the totality of circmnstances (i.e., nature 

of the violation, multiple flights, no hazard posed, and the carrier's size) 25 

In addition, the FAA's sanction guidance contemplates "penalties lower than the ranges" 

in the context of"numerous multiple violations resulting from an initial act or omission," 

emphasizing that "[i]t may be appropriate to select a civil penalty amount below the ranges in 

Figures 7-1 or 7-2 if the degree of culpability is minimal, the degree of potential hazard is 

extremely low, and there are no other aggravating circumstances."26 Here, the ALJ took into 

account Complainant's acknowledgement that the affected component was operational and 

"there was a low degree of hazard." (Initial Decision at 13). He also found that "there was no 

threat to safety." !d. Accordingly, the imposition of a civil penalty lower than that sought by the 

Complainant was appropriate. 

Moreover, in a case where the FAA sought a civil penalty of $20,000 but the ALI 

reduced it to $5,500, the Administrator ultimately decided to assess a $6,500 civil penalty on the 

basis that FAA failed to explain to the ALJ, either through witnesses or in its written closing 

argument, exactly how it used its sanction guidance to arrive at a figure of$20,000 27 Notably, 

here the ALI echoed this language in his Initial Decision, observing that the Complainant "failed 

to explain to the undersigned, either through witnesses or in its written closing argument, exactly 

how it used its sanction guidance to arrive at a figure of$142,500" and that it "fail[ed] to explain 

its proposed sanction adequately." (Initial Decision at 14). Therefore, the ALI was justified in 

refusing to defer to the Complainant's proposed penalty. 

25 In the Matter of Eastern Air Center, Inc., FAA Order No. 2008-3 (Jan. 28, 2008), pp. 11-12. 

26 FAA Order 2150.3B at 7-13. 

27 See In the Matter of Warbelow 's Air Ventures, Inc., FAA Order No. 2000-3 (Feb. 3, 2000). The 

Administrator observed that, as was the case here, "[b ]y failing to explain its proposed sanction 

adequately, Complainant in effect was asking the law judge simply to trust Complainant that its 

proposed sanction was appropriate." !d. at 32. 

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In its Appellate Brief, the Complainant pays short shrift to the ALI's diligent application 

of the FAA's sanctions guidance to the facts. Instead, it focuses on (i) the ALI's refusal to count 

separate flights as individual violations, and (ii) the ALI's consideration of the Respondent's 

corrective actions as mitigating factors. As discussed above, the ALJ was justified in treating 

violations arising from separate flights as residual violations. As discussed below, consideration 

of the Respondent's corrective actions was warranted and appropriate. 

2. The ALJ Properly Considered Respondent's Corrective Actions In 

Mitigation 

A civil penalty may be reduced based upon corrective action where there is evidence of 

"swift or comprehensive action that is positive in nature, such as sending employees to special 

training or instituting programs to ensure compliance with the safety regulations."28 By 

"positive," the Administrator means "action to prevent future violations from occurring."29 The 

Administrator has given significant weight to respondents' efforts to ensure that a violation will 

not reoccur. 

30 Where remedial corrective action was not considered in the FAA's proposed 

sanction, it should be considered by the ALJ in his initial decision31 In line with these 

authorities, the ALJ properly considered the Respondent's corrective actions here, finding that 

the Respondent was cooperative, admitted the violations, and "took swift and immediate 

corrective action." (Initial Decision at 13). 

The Complainant's arguments that the ALJ should not have considered the Respondent's 

corrective actions are without merit and fail for a number of reasons. 

28 In the Matter of Ronald Haydon Whitley, FAA Order No. 2009-4 (Jan. 14, I 009), p. 21. 

29 See id. at 22 (citing In the Matter ofA/ika Aviation, Inc., FAA Order No. 1999-14, p. 11 (finding 

that terminating an employee does not amount to a positive conective action because it does nothing 

to ensure that other or future employees do not make the same mistake)). 

30 In the Matter of Airtran Airways, Inc., Docket No. FAA-201 0-0193, Initial Decision (June 23, 

2010), p. 14. 

, l ' Id., p. 15. 

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First, the Complainant argues that the Respondent did not provide evidence of its 

"alleged" corrective actions to the ALJ32 This assertion fails because the Complainant admitted 

in its papers that the Respondent performed the corrective actions that the ALJ considered to be 

mitigating factors. Specifically, in the Rebuttal Brief it submitted to the ALI, the Complainant 

wrote: "Undoubtedly, Respondent took the actions it said it did."33 

Second, the Complainant's suggestion that the record in this case does not contain 

documentary evidence of Respondent's corrective actions is incorrect. Respondent submitted a 

description the corrective actions it took in its written response to the FAA's letter of 

investigation,34 its responses to Complainant's Interrogatories,35 and in a later supplemental letter 

fi·om its counsel36 These documents were part of the evidentiary record below. The ALJ 

reviewed and considered all documentary evidence submitted. (Initial Decision at 6). The 

parties stipulated that there were no factual disputes for the ALJ to decide, which include the 

existence of Respondent's mitigation. 

Third, contrary to Complainant's assertions, the Respondent presented evidence of how 

the corrective actions it took exceeded minimum requirements and were directed at addressing 

the causes of the event that were identified. In its response to the Letter of Investigation, the 

Respondent explained that it had identified a failure in its system that led to the check of the 

sensor not being accomplished as required, and stated: 

A key control to assuring this type of daily MEL required inspection is 

accomplished as required is notification to the Flight Crew via printed 

Flight Release .... Unfortunately, we have determined that with the 

implementation of a recent revision to the MEL the required text for this 

32 See Complainant's Brief at 14. 

33 Complainant' Rebuttal to Respondent's Motion for Decision (Mar. 27, 2014) at 8. 

34 Complainant's Motion for Decision (Jan. 30, 20 14), Exhibit 2. 

35 ld., Exhibit 3. 

36 Respondent's Rebuttal and Motion for Decision (Mar. 21, 2014), Exhibit B. 

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particular MEL (21-51-4a) had not been entered into the database as 

. d 37 requrre . 

The response then identified initial corrective actions, which included: 

• Auditing the relevant database to ensure it contained all MEL comments 

and restrictions; 

• Revising the technical writing checklist for MEL development to require a 

validation of applicable data; and 

• Enhancing Quality Assurance functions to verify ensure current MEL data 

is included in the database.38 

In addition to these actions, the Respondent also established an electronic block on aircraft that 

require daily inspections that prevents crew members from printing a release with an open 

maintenance item; established a new position of Maintenance Database Administrator to monitor 

the maintenance database and ensure the aircraft blocking program was working; and added 

additional maintenance controllers to provide enhanced oversight.39 As it explained in its brief 

to the ALJ, the Respondent estimated that it had invested $622,000 in implementing these and 

other measures 40 

The discussion of corrective actions in Complainant's brief appears to have cherry picked 

some examples at which to take pot shots, while ignoring the full scope of corrective actions that 

the Respondent took. Establishing processes to ensure integrity of the maintenance database, 

creating a novel "aircraft blocking program," and adding additional positions to ensure the new 

processes are working were not steps taken to meet minimum regulatory requirements. Although 

the Respondent could have crafted a narrow and inexpensive fix that addressed only the 

oversight that occurred, it instead enacted robust measures that added a "belt and suspenders" 

approach to compliance. 

37 Complainant's Motion for Decision (Jan. 30, 2014), Exhibit 2. 

38 See id. 

39 See Respondent's Rebuttal and Motion for Decision (Mar. 21, 2014), Exhibit B. 

40 Respondent's Rebuttal and Motion for Decision (Mar. 21, 2014) at 11. 

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The evidence of these corrective actions was before the ALI, and he properly considered 

them as mitigating factors. 

3. The Penalty the Complainant Seeks is Unreasonable, Unduly Harsh, and 

Inconsistent With Policy 

The Complainant's proposed civil penalty in the amount of $142,500 is unwarranted, 

over counts the number of violations, assesses too high an amount per violation, and does not 

credit Respondent's substantial mitigation measures. The Complainant's attempt to compound 

penalties by taking a formulaic approach, instead of considering all relevant factors, flies in the 

face of the applicable guidance and authorities. The Administrator "does not encourage the use 

of a mathematical formula to set a civil penalty" but rather encourages that civil penalties be 

assessed "based on a consideration of all relevant factors."41 In determining the appropriate 

penalty, "it is improper to take the mathematical, formulaic approach of multiplying the number 

of violations by a set dollar amount.42 Here, the Complainant's approach to calculating the civil 

penalty is defective because it formulaically counts each separate flight of the Aircraft as an 

individual violation and fails to properly take into account the totality of the circmnstances and 

Respondent's corrective actions. 

An appropriate civil penalty "must reflect the totality of the circumstances surrounding 

the violations."43 The factors that the FAA must consider include: (i) the nature and 

circumstances of the violation; (ii) the extent and gravity of the violation; (iii) the person's 

degree of culpability; (iv) the person's history of violations, if any; (v) the person's ability to pay 

the civil penalty; (vi) the effect on the person's ability to stay in business; and (vii) other matters 

41 In the Matter of Mole-Master Services Corporation, FAA Order No. 2010-ll (June 16, 2010) at 

12, n. 13. 

42 In the Matter ofinterstate Chemical Company, Inc., FAA Order No. 2002-29 (Dec. 6, 2001) at 15. 

43 In the Matter of Ventura Air Services, Inc., FAA Order No. 2012-12 (Nov. 1, 2012) at 25. 

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as justice may require44 Here, although the Complainant acknowledges there was a low degree 

of hazard because the affected component was determined to be operational, it did not decrease 

the penalty in light of this mitigating factor. 45 The Complainant gives no credence to the fact 

that this event arose from an isolated and inadvertent oversight, with no impact on safety, that 

was promptly and thoroughly corrected. 

The Complainant also inappropriately assessed too high an individual penalty for each 

violation. The Complainant argues that the appropriate penalty is $7,500 per violation, which is 

at the upper end of the range (from $2,000 to $9,999) in the category applicable to this matter. 

The Complainant attempts to justify this amount by reference to the Respondent's "status as a 

Part 121 certificate holder" and "lengthy experience as an air carrier."46 However, 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. Corresponding to experience level, the FAA's 

sanction guidance suggests the sanction should reflect the significance of the violation in light of 

the certificate holder's experience.47 

In addition, for the reasons discussed above, the Complainant's refusal to take into 

account the Respondent's corrective actions as mitigating factors is unreasonable. Here, the AL.T 

conducted the thorough analysis of the facts and totality of circwnstances within the framework 

ofF AA' s sanction guidance that the Complainant refused to perform. 

44 See id. at26, n. 33 (citing Warbelow'sAir Ventures, Inc., FAA Order No. 2000-3 at 16-17, n. 22, 

and 21 (February 3, 2000), reconsideration denied, FAA Order No. 2000-14 (June 8, 2000) and FAA 

Order No. 2000-16 (August 8, 2000), petition for review denied, Warbelow 's Air Ventures v. FAA, 

No. 00-70423 (9th Cir. September 20, 2001)). 

45 Complainant's Motion for Decision, p. I 0. 

46 Complainant's Brief at 16. 

47 See FAA Order 2150.3B, Chapter 7, ~ 4.c.(2). 

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CONCLUSION 

The fmdings and decision of the ALJ are clearly supported by its findings offact and 

conclusions oflaw. The civil penalty set by the ALJ was well within his discretion and 

supported by the FAA's sanctions guidance and relevant authorities. Accordingly, Respondent 

respectfully requests that the Complainant's appeal by denied and the ALI's decision be 

affirmed. 

Dated: September 24, 2015 

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Respectfully Sub · )ed, 

~c Todd C. Emerson 

Sky West Airlines, Inc. 

444 South River Road 

St. George, Utah, 84 790 

Telephone: ( 435) 634-3530 

Facsimile: ( 435) 634-3505 
CERTIFICATE OF SERVICE 

I hereby certify that on this date I have served by F edEx, postage prepaid, and the 

original and one copy of the foregoing Reply Brief of Respondent/Appellee Sky West Airlines, 

addressed to: 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl00 

I hereby certify this date I have served by FedEx, postage prepaid, and electronic mail a 

copy of the foregoing Reply Brief of Respondent/Appellee Sky West Airlines addressed to: 

Casey E. Gardner 

Enforcement Division, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Dated: September 24, 2010 

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