# RECJ=S 0' U.S. DEPARTMENT OF TRANSPORTATION L- B

FEDERALAVIATIONADMINISTRATION 

## SEP 25 

## 20!5
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## EAR11\JG DOCKET FEDERALAVIATION ADMINISTRATION Complainant/ Appellant, V. SKYWESTAIRLINES, 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 Briefrequesting thatthe 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 ALIcorrectly determined the appropriate civil penalty based onthe totality ofthe circumstances, applicable sanctions guidance, precedent, and policy. The appeal ofthe 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 inhis Initial Decision. On October 18, 2010, the crew ofoperating Sky West's Bombardier CRJ-900 aircraft, registered
as N822SK (the "Aircraft") recorded a fault indicationinthe Aircraft Maintenance Log ("AML"). The indication was a "PACKFAULT" status message, whichreferred to a message communicating the status ofone ofthe "pack discharge pressure sensors" that corresponded to
one ofthe two redundant cabin air conditioning systems ofAircraft. According to the applicable procedures in item 21-51-4a ofthe minimum equipment list ("MEL"), maintenance ofthe item could be deferred for later investigation and correction, ifnecessary. To satisfy the deferralrequirements ofthe MEL, either flight crew ormaintenance personnel were required to (i) query the maintenance data computer ("MDC") once per flight day to verify operation ofthe 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 ofthe sensor was completed and logged. On October 18 and 21, the MDL was queried, the operation ofthe 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 21-51-4aprocedure was completed. The pack discharge pressure sensor was always functioning normally. The fault occurred on one chmmel, ofa dual channel system, that was not communicating withthe Aircraft's computer. The sensor was cleared in accordance with the Aircraft's maintenance manuals and no further daily checks ofit
were required. The air conditioning in the Aircraft was always functioning. Ifit had notbeen 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 ofthe 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 otherthan an inadvertent oversight. The record contains no evidence ofany safety issues arising from this event. II. THE ALJ'S FINDINGS As a result ofthe parties' stipulation as to the facts and theirjoint agreement that no hearing was necessary, the ALJ decided this matter onthe basis ofwritten submissions.

- 2-The Complainant alleged that Respondent hadviolated the following sections of 14 C.P.R.: § ll9.5(g) (operating in violation ofOpSpecs); § 119.5(1) (operating under Part 121 in violation ofOpSpecs); § 12l.628(a)(5) (taking offan airplane with inoperable equipment without complying withMEL 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 ofseventeenflights the Aircraft made on October 19 and October 20 was a separate an independent violation ofthe regulations. The Complainant sought a civil penalty in the amount of$142,500. BywrittenInitial Decision dated April 22, 2015, the ALJ heldthat 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 ofproofon 14 C.P.R. § 12l.628(a) because Complainant failed to prove that the Aircraft took offwith inoperable equipment installed. The ALJ assessed
a civil penalty inthe amount of$11,998 for two violations of§ 119.5(g)- operating in violation ofOpSpecs by failing to make AML entries ofthe required manual verification ofthe sensor on October 19 and 20,2010. In determining the penalty amount, the ALJ expressly applied the framework ofPAA's sanction guidance, Order 2150.3B, to the undisputed facts. He determined that a civil penalty of $11,998 was more appropriate thanthe amount soughtby the Complainant because it "more accurately reflects the totality ofthe circmnstances surrounding the violations." (Initial Decision at 15). He observed that the evidence did not supportthe Complainant's proposed penalty, whichhe found "wouldbe an excessive penalty in the circumstances ofthis 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 ofthe civil penalty it sought. (/d. at 14): Here, the PAA has failed to explainto the undersigned, either through witnesses orin 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 theundersigned simplyto trust Complainant that its proposed sanction was appropriate.

The ALI made the following findings, which fo1med the basis ofhis 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 ofbothinattention and lack ofpurposeful 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 ofthe 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 ofcare" 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 soughtby the Complainant, whichwas patently excessive and failed to take into account the totality of circumstances. The component at the center ofthis matter, one oftwo redundant "pack discharge pressure sensors" in the redundant air conditioning systems, didnot fail. A "fault" occurred on one oftwo 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 personnelto take over the redundant function ofthe faulty second channel and

- 4-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 itselffunctioned properly the entire time. The Respondent enacted robust corrective actions to modify its processes to ensure thatthe failure to log such checks would not happen again. Onthese 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 onthe question ofwhat constitutes an appropriate civil penaltyunder 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 Complainantultimately has the burden ofestablishingthat its proposed civil penalty is appropriate to the alleged violation. 1 A sanctionproposedbythe FAA is "no more than a proposal or a recommendation to the ALJ."2 The Complainantmust show that it considered the seriousness ofthe violation and the totality ofthe circumstances, and prove to the ALJ how it used the sanction guidance to arrive at its proposal? The Complainant must also prove the existence ofaggravating factors and must show how itused aggravating or mitigating factors to adjust the suggested sanction. Here, the Complainant did notmeet its burden. The appropriate sanction mustbe based on a totality ofthe circumstances,4 including the nature, extent, and gravity ofthe violation, degree ofculpability, history ofprior violations,

1 In the Matter of Luxemburg, FAA Order No. 1994-18 (June 22, 1994), p. 6. 2 In the Matter of EasternAir Center, Inc., FAA OrderNo. 2008-3 (Jan. 28, 2008), p. 8. 3 Id.; see also In the Matter ofWarbelow 'sAir Ventures, Inc., FAA Order 2000-3 (February 3, 2000), p. 19. 4 In the Matter of EasternAir Center, Inc., FAA Order No. 2008-3 (Jan. 28, 2008), p. 9. - 5 -financial situation, and other matters asjustice may require.5 The ranges set forth inthe FAA's sanction guidance are for single, inadvertent violations. 6 An inadvertentviolation 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 significantweightto respondents' efforts to ensme that a violation will not reoccur9 Where remedial corrective action was not considered in the FAA's proposed sanction, it shouldbe consideredbythe ALJ inhis initial decision. 10 The Complainant in this case failed to follow its own guidance and the applicable authorities whenformulating its proposed civil penalty. It disregarded the totality ofthe circumstances and refused to considerthe Respondent's corrective actions. In contrast, the ALJ meticulously applied the framework ofthe sanctionpolicy contained in FAA Order 2150.3B, FAA Compliance and EnforcementProgram (effective October 1, 2007). The ALJ correctly analyzed this matter in light ofthe totality ofthe circumstances and tookinto account the Respondent's corrective actions as mitigating factors. Simplyput, the ALJ calculated the civil penalty correctly and the Complainant did not. The standard ofreviewinany appeal from an ALJ decision is whether: (i) each fmding offact is supported by a preponderance ofreliable, probative, and substantial evidence; (ii) each conclusion oflawis made in accordance with applicable law, precedent, and publicpolicy; and

5 In the Matter ofGoJetAirlines, LLC, Initial Decision (May 20, 2011), p. 8; quoting Folsom'sAir Service, Inc., p. 11. 6 EasternAir Center, p. 9. 7 In the Matter of PinnacleAirlines, Inc., Docket FAA-2009-0180, Initial Decision (December 1I, 2009), p. I9. 8 In the Matter of AmericanAirNetwork, Inc., FAA OrderNo. 2006-5 (Feb. I 0, 2006), p. 7. 9 In the Matter of AirtranAirways, Inc., DocketNo. FAA-2010-0193, Initial Decision (June 23, 2010), p. 14. 10 Id., p. 15.

- 6-(iii) the ALI committed any prejudicial errors that suppmithe appeal. 11 Here, the operative facts
were undisputed. All ofthe ALI's legal conclusions were in accordance with applicable law, precedent, and public policy, and the Complainant has not shownthat the ALI committed any prejudicial errors. Accordingly, the ALI's opinion shouldbe sustained. 

### A. THE ALJDID NOT ERRIN REFUSING TO FIND THAT SKYWEST TOOK OFF N822SKWITH INOPERABLE EQUIPMENT IN VIOLATION OF 14 C.F.R. 

### § 121.628(a). As aninitial matter, the Complainanttakes 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 personmaytake offan 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 ofproofby a preponderance ofevidence 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 operatorto interrogate the computer
once a day to verify that the sensor was operative, as follows: Systemredundancy may be degraded as indicated by "LPACK PAULT" and/or "RPACK PAULT" status messages provided: (1) Associated pack discharge pressure sensor(s) is verified operative once each flight day, and (2) Automatic Mode ofthe associated Cockpit/Cabin Temperature Control System is operative and associated MAN mode is not selected.

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

- 7-(MEL 21-51-4a, Exh. A to Respondent's Rebuttal and Motion for Decision). Thus, the MEL provides thatthe purpose ofthe required query is to verify that the sensor in question is "operative." It is noteworthy that the MEL treats the condition indicatedby a "PACKFAULT" message as a degradation in"[s]ystem redundancy" and not a failure. Indeed, the MEL permits deferment ofmaintenance so long as "Automatic Mode" ofthe air conditioning system associated bythe relevant discharge pressure sensor is "operative;" i.e., so long as the air conditioning system functions inits normal automatic mode. 12 The communication fault message corresponds to one oftwo air conditioners that are for passenger comfort only. They do not cool any avionics or flight control systems. The check ofthe sensor required by the MEL
was aredundant requirement to manually verify the operation ofthe sensor. There is no evidence inthe 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 notrecord it in the AML. Regardless ofthis gap inrecords, it is logical and reasonable to infer that, ifthe sensor was found to be operable on October 18 and 21, it was operable on October 19 and 20. This inference was confirmedbythe fact that the sensor was ultimately found to be fully operable when the MEL item was closed out. Moreover, there is no evidence thatthe Aircraft's air conditioning and pressurization system failed to ftmction. Ifithad, the computer wouldhave indicated a "fail" message, and not a sensor fault. Onthese facts, the ALJ was within his discretion to conclude that the Complainant failed to prove that a component onthe Aircraft was inoperable. In its brief, Complainant devotes

12 Moreover, the MEL's use ofthe plural ("and/or" and "pressure sensor(s)") indicates that notjust one, but both ofthe pack discharge pressure sensors may trigger a "PACK FAULT" indication and maintenance may stillbe deferred. The sensor-reporting fault is so minorthatthe 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.

- 8-considerable discussion to the purpose and use ofa 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 Complainanthad failed to prove with sufficient evidence the predicate fact that the sensor was inoperable, the ALJ properly determined, withinhis 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 N822SKAS INDEPENDENT VIOLATIONS FORPURPOSES OF DETERMINING A SANCTION WAS APPROPRIATE AND IN ACCORDANCE WITH LAW. The ALJ properly fOlmd that separate flights ofthe Aircraft did not constitute independent violations and rejected the Complainant's attempt to over count the munber of violations thattookplace for purposes ofdetermining the civilpenalty. 1. Applicable Law and Policy Do Not Require Each Flight ofN822SKto 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 ofthe Aircraft constituted a separate violation of the regulations. 13 This is simply not the case. Rather, as stated inthe FAA's own sanction guidance, "[ w]hen a single instance ofnoncompliance results in multiple violations ofgeneral 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 ofa civilpenalty, the computation ofa civil penalty "shouldnot be done by

13 See, e.g. Complainant's Briefat 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.

- 9-multiplying the sanction for a single violation by the number offlights." 15 Instead, "judgment should be exercised in determining the seriousness ofthe violations and applying a sanctionthat will deter future violations bythe violator or others similarly situated, i.e., the totality ofthe circumstances ofthe case should be considered." 16 As discussed below, the ALI exercised his judgment in preciselythis manner. Inits brief, the Complainant cites 49 U.S.C. § 4630l(a)(2) for the propositionthat a separate violation occurs for each flight involving the violation, and that the ALJ's failure to find that each separate flight constituted anindependent 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 subsectionfor each day the violation
... continues or, 

### if applicable, for each flight involvingthe violation." 18 Thus, althoughthe statute gives the FAA discretion to find a violation to have occurred for each flight, "ifapplicable," the statute does notmandate such a finding. Therefore, the Complainant's argument that, "when an operational violation stems from an underlying maintenance failure, the plain language of49 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 ofa civil penalty" 19 is an incorrect and misleading description ofthe statnte. Itis also inconsistent withthe FAA's own sanction guidance.

15 In the Matter of EasternAir Center, Inc., FAA OrderNo. 2008-3 (Jan. 28, 2008), at 9. 16 Id., quoting FAA Order 2150.3BA, Appendix 4. 17 Complainant's Briefat 10. 18 49 U.S.C. § 4630l(a)(2) (emphasis added). 19 Complainant's Briefat 12 (emphasis added).

- I0-2. The ALJProperly Found that Separate Flights Were Residual Violations The ALJ found that separate flights ofthe Aircraft onrelevant days were residual violations that were "dependent onthe original failure to annotate the AML ontwo separated dates, October 19 and 20, 2010." (Initial Decision at 15). In doing so, he found that the failure to document checks inthe logbookwere the underlying violations and that "[t]here were no distinguishing factual elements between the AML notation violations andthe seventeen (17) flights." (Id.) This determination was not erroneous, but rather was correct and appropriate based onthe facts presented andthe applicable authorities. A residual violation is one "that flows solely from a respondent's violation ofanother, independentregulation."20 Here, the ALJ found that the Complainanthad not met its burden of proving that the Aircraft was operated with aninoperative component installed in it. (See Initial Decision at 10). Instead, each ofthe ALI's findings thatthe Respondent violatedthe regulations, including by operating an unairworthy aircraft, was based solely onthe evidence thatthe Respondent failed to verify operation ofthe sensor and documentthe verification inthe AML. (See id. at 10-11). Thus, each ofthe violations the ALIfound arising from operation ofthe aircraft flowed solely from Respondent's operation ofthe Aircraft contraryto its OpSpecs. A separate sanctionis notjustified where a "residual violation is notbased on any independent event."21 For each ofthe violations here, the failure to document the sensor check
was the eventthatlead 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 compoundpenalties. All ofthe violations are based onthe
same two events that the Complainantproved, and the Respondent admitted: failure to
20 In the Matter of Rushmore Helicopters, Inc., FAA OrderNo. 2012-8 (Oct. 11, 2012). 21 In the Matter of GoJetAirlines, LLC, FAA OrderNo. 2012-5 (May 22, 2012), p. 24-25 (petition for review by respondent onunrelated issue denied, DocketNo. 12-2719 (8th Cir., March 4, 2014)).

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-document a manual verification ofthe sensor's operation ontwo occasions. The Complaillant argues thatRespondent's alleged violation of 14 C.F.R. § 119.5(g) requires proofofseparate and distinct facts from those relating to the operation ofindividual 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 Respondenthad 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 ofwhich differ slightly and sometimes not at all, rendering an excessive proposedpenalty. Sky West has never argued that it did not fail to document inthe AML that itfollowed the MEL or that it was not liable for sanction. The questionbelow 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 withinhis discretion to determine, based onthe factual record before him, that violations arising out ofseparate flights were residual. 

### C. THE ALJ'S CIVIL PENALTYASSESSMENT 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 ofthe circumstances,23 including the nature, extent, and gravity ofthe violation, degree ofculpability, history ofprior violations, financial situation, and other matters asjustice mayrequire.24 This
case is one inwhichthe 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 Briefat 12. 23 In the Matter of EasternAir Center, Inc., FAA OrderNo. 2008-3 (January 28, 2008), p. 9. 24 In the Matter of GoJetAirlines, LLC, Initial Decision (May 20, 2011), p. 8; quoting Folsom'sAir Service, Inc., p. 11.

- 12-issue resulted from the noncompliance. The ALIproperly consideredthe totality ofthe circumstances and issued an award in line with the FAA's sanction guidance. In making his civilpenalty 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 inhis Initial Decision:
• Nature ofviolation; • Whether the violation was inadvertent or advertent; The certificate holder's level ofexperience; The attitude ofthe violator; The degree ofhazard; • Action taken by employer or other authority; • • • • • Use ofa certificate; Violationhistory; Abilityto absorb sanction; Consistency ofsanction; 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 notdisputed: 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 ofcare;" 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, inthe EasternAir Center case, the FAA sought a civil penalty of$6,000 butthe ALJ reduced itto $2,400. On appeal, the Administrator instead assessed an even lower civil penalty of$1,500. Citing the "lack ofimpact
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 inthe record, and the totality ofcircmnstances (i.e., nature ofthe 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]tmay be appropriate to select a civilpenalty amountbelowthe ranges in Figures 7-1 or 7-2 ifthe degree ofculpability is minimal, the degree ofpotential 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 ofhazard." (Initial Decision at 13). He also found that "there was no threat to safety." !d. Accordingly, the imposition ofa civil penalty lowerthanthat sought by the Complainantwas appropriate. Moreover, in a case where the FAA sought a civil penalty of$20,000 butthe ALI reduced itto $5,500, the Administrator ultimately decided to assess a $6,500 civil penalty on the basis that FAA failed to explainto the ALJ, either through witnesses or inits written closing argument, exactly how itused its sanction guidance to arrive at a figure of$20,000 27 Notably, here the ALI echoedthis language inhis Initial Decision, observing that the Complainant "failed to explainto 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 wasjustified in refusing to defer to the Complainant's proposedpenalty.

25 In the Matter of EasternAir Center, Inc., FAA OrderNo. 2008-3 (Jan. 28, 2008), pp. 11-12. 26 FAA Order 2150.3B at 7-13. 27 See In the Matter ofWarbelow 's Air Ventures, Inc., FAA OrderNo. 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 effectwas asking the lawjudge simply to trust Complainant that its proposed sanction was appropriate." !d. at 32.

- 14-Inits Appellate Brief, the Complainantpays short shrift to the ALI's diligent application ofthe 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 ofthe Respondent's corrective actions as mitigating factors. As discussed above, the ALJ wasjustifiedintreating violations arising from separate flights as residual violations. As discussedbelow, consideration ofthe 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 innature, such as sending employees to special training or instituting programs to ensure compliance withthe safety regulations."28 By "positive," the Administrator means "actionto prevent future violations from occurring."29 The Administratorhas given significant weight to respondents' efforts to ensure that a violation will notreoccur.30 Where remedial corrective action was not considered inthe FAA'sproposed 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 consideredthe Respondent's corrective actions are without merit and fail for a number ofreasons.

28 In the Matter of RonaldHaydon Whitley, FAA Order No. 2009-4 (Jan. 14, I009), p. 21. 29 See id. at 22 (citingIn the Matter ofA/ikaAviation, Inc., FAA OrderNo. 1999-14, p. 11 (finding thatterminating an employee does not amountto 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 AirtranAirways, 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 ofits "alleged" corrective actions to the ALJ32 This assertion fails because the Complainant admitted inits papers thatthe Respondent performedthe corrective actions that the ALJ consideredto be mitigating factors. Specifically, inthe Rebuttal Briefit submittedto the ALI, the Complainant wrote: "Undoubtedly, Respondent took the actions it said it did." 33 Second, the Complainant's suggestion that the record inthis case does not contain documentary evidence ofRespondent's corrective actions is incorrect. Respondent submitted a description the corrective actions ittookinits 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 ofthe evidentiary record below. The ALJ reviewed and considered all documentary evidence submitted. (Initial Decision at 6). The parties stipulatedthat there were no factual disputes for the ALJto decide, which include the existence ofRespondent's mitigation. Third, contraryto Complainant's assertions, the Respondent presented evidence ofhow the corrective actions ittook exceeded minimum requirements and were directed at addressing the causes ofthe eventthat were identified. Inits response to the Letter ofInvestigation, the Respondent explainedthat ithad identified a failure in its systemthat ledto the check ofthe
sensor notbeing accomplished as required, and stated: A key control to assuring this type ofdaily MEL required inspection is accomplished as required is notification to the Flight Crew viaprinted Flight Release
.... Unfortunately, we have determined that with the implementation ofa recent revision to the MELthe required text for this
32 See Complainant's Briefat 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.

- 16-particular MEL (21-51-4a) had not been entered into the database as . d 37 requrre . The response thenidentified 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 developmentto require a validation ofapplicable data; and • Enhancing Quality Assurance functions to verify ensure currentMEL 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 crewmembers from printing a release with an open maintenance item; established a newposition ofMaintenance Database Administratorto monitor the maintenance database and ensure the aircraft blockingprogram 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 implementingthese and other measures 40 The discussion ofcorrective actions in Complainant's briefappears to have cherry picked
some examples at which to take pot shots, while ignoring the full scope ofcorrective actions that the Respondent took. Establishing processes to ensure integrity ofthe 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 minimumregulatory requirements. Although the Respondent could have crafted a narrow and inexpensive fix that addressed only the oversightthat 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), ExhibitB. 40 Respondent's Rebuttal and Motion for Decision (Mar. 21, 2014) at 11.

- 17-The evidence ofthese 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 ofviolations, assesses too high an amountper violation, and does not credit Respondent's substantial mitigationmeasures. The Complainant's attempt to compound penalties by taking a formulaic approach, instead ofconsidering all relevant factors, flies in the face ofthe applicable guidance and authorities. The Administrator "does not encourage the use ofa mathematical formula to set a civil penalty" butrather encourages that civil penalties be assessed "based on a consideration ofall relevant factors."41 In determining the appropriate penalty, "itis improper to take the mathematical, formulaic approach ofmultiplying the number ofviolations by a set dollar amount.42 Here, the Complainant's approach to calculatingthe civil penalty is defective because it formulaically counts each separate flight ofthe Aircraft as an individual violation and fails to properly take into account the totality ofthe circmnstances and Respondent's corrective actions. An appropriate civil penalty "must reflect the totality ofthe circumstances surrounding the violations."43 The factors that the FAA must consider include: (i) the nature and circumstances ofthe violation; (ii) the extent and gravity ofthe violation; (iii) the person's degree ofculpability; (iv) the person's history ofviolations, ifany; (v) the person's ability to pay the civilpenalty; (vi) the effect on the person's ability to stay inbusiness; and (vii) othermatters

41 In the Matter of Mole-Master Services Corporation, FAA OrderNo. 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 ofVenturaAirServices, Inc., FAA OrderNo. 2012-12 (Nov. 1, 2012) at 25.

- 18 -asjustice may require44 Here, althoughthe Complainant acknowledges there was a low degree ofhazard because the affected component was determined to be operational, it did not decrease the penalty in light ofthis 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 perviolation, which is at the upper end ofthe range (from $2,000 to $9,999) inthe category applicable to this matter. The Complainant attempts tojustifythis amount byreference to the Respondent's "status as a 

### Part 121 certificateholder" and "lengthy experience as an air carrier."46 However, there is no mandate that an airline be automatically assessed sanctions at the higher end ofthe range simply because ithas existed for a decade or more. Corresponding to experience level, the FAA's sanction guidance suggests the sanction should reflect the significance ofthe 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 conductedthe thorough analysis ofthe facts and totality ofcircwnstances within the framework ofFAA's sanction guidance that the Complainant refused to perform.

44 See id. at26, n. 33 (citing Warbelow'sAir Ventures, Inc., FAA OrderNo. 2000-3 at 16-17, n. 22, and 21 (February 3, 2000), reconsideration denied, FAA Order No. 2000-14 (June 8, 2000) and FAA OrderNo. 2000-16 (August 8, 2000),petition for review denied, Warbelow 'sAir Ventures v. FAA, No. 00-70423 (9th Cir. September 20, 2001)). 45 Complainant's Motion for Decision, p. I0. 46 Complainant's Briefat 16. 47 See FAA Order 2150.3B, Chapter 7,**~** 4.c.(2).

- 19-CONCLUSION The fmdings and decision ofthe ALJ are clearly supported by its findings offact and conclusions oflaw. The civilpenalty set by the ALJ was well withinhis discretion and supported by the FAA's sanctions guidance and relevant authorities. Accordingly, Respondent respectfully requests that the Complainant's appeal by denied andthe ALI's decision be affirmed. Dated: September 24, 2015

- 20- Respectfully Sub · )ed,

# ~c Todd C. Emerson SkyWest Airlines, Inc. 444 SouthRiver Road St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505CERTIFICATE OF SERVICE I hereby certify that onthis date I have served by FedEx, postage prepaid, and the original and one copy ofthe foregoing Reply BriefofRespondent/Appellee SkyWest 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 servedby FedEx, postage prepaid, and electronic mail a copy ofthe foregoing Reply BriefofRespondent/Appellee SkyWestAirlines addressed to: Casey E. Gardner EnforcementDivision, AGC-300 Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, DC 20591

Dated: September 24, 2010

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