Todd C. Emerson, #817 5 

SKYWEST AIRLINES, INC. 

444 South River Road 

St. George, Utah, 84 790 

Telephone: (435) 634-3530 

Facsimile: (435) 634-3505 

-andMichael L. Dworkin #64070 

MICHAEL L. DWORKIN AND ASSOCIATES 

465 California Street, Suite 210 

San Francisco, California 94118 

Telephone: (415) 421-2500 

Facsimile: (415) 421-2560 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

SKYWEST AIRLINES, INC 

(Civil Penalty Action) 

-CONSOLIDATEDRECEIVED 

AUG -6 2014 

HEARING DOCKET 

FAA CASE NO. 2011NM060038 I FDMS FAA-2012-0874 

FAA CASE NO. 2011NM060047 I FDMS FAA-2012-0872 

FAA CASE NO. 2011NM060063 I FDMS FAA-2012-0873 

FAA CASE NO. 2011NM060072 I FDMS FAA-2012-0869 

FAA CASE NO. 2011NM060073 I FDMS FAA-2012-0868 

FAA CASE NO. 2011NM060081 I FDMS FAA-2012-0904 

FAA CASE NO. 2011NM060095 I FDMS FAA-2013-0617 

FAA CASE NO. 2012NM060014 I FDMS FAA-2013-0619 

SKYWEST AIRLINES, INC.'s 

POST-TRIAL BRIEF 
TABLE OF CONTENTS 

I. INTRODUCTION 3 

II. BACKGROUND 5 

III. SKYWEST'S WEIGHT & BALANCE PROGRAM 11 

IV. BAGGAGE COUNT DISCREPANCIES DID NOT ADVERSELY AFFECT 

AIRCRAFT WEIGHT AND BALANCE, CENTER OF GRAVITY OR AIRCRAFT 

PERFORMANCE 14 

A The Discrepancies Were De Minim us 14 

B. Case-by-Case Analysis 18 

v. SKYWEST'S PROPOSED W&B MANUAL REVISION 29 

VI. SKYWEST'S CORRECTIVE ACTIONS 31 

VII. CONCLUSION--CASES INVOLVING SIMPLE INNOCENT HUMAN ERROR DO 

NOT MERIT THE SEVERE SANCTION THAT COMPLAINANT SEEKS 41 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page2 
I. INTRODUCTION 

"It's like deja vu, all over again" -Berra, Y. 

After patiently sitting through a second hearing, with many of the same 

witnesses, and wading through a mountain of duplicative evidence, perhaps the 

Court wonders why it has been asked to answer the same questions it previously 

answered, quite clearly, on May 2, 2013. Including the first hearing, the AL) has now 

examined evidence of nineteen flights, all of which could have been examined at the 

first hearing in Salt Lake City in October 2012. But in the interest of clarity and 

judicial economy, SkyWest and the FAA agreed to consolidate five of the nineteen 

flights and bring two bellwether cases. In the first case, SkyWest contested liability. 

In the second case, SkyWest contested only the size of the proposed penalty. This 

way the parties could get answers about liability and sanction from a neutral and 

authoritative arbiter- and then resolve the remaining, identical, cases without 

burdening the court with repetitive and cumbersome litigation. At least that was the 

plan. 

Unfortunately, the FAA has utterly rejected this Court's prior decisions. 

Notably it did not appeal either decision, but preferred to reprocess its arguments 

and take the proverbial "second bite at the apple" in the hope this Court will reverse 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 3 
itself. As it recycles through its arguments, the FAA looks to 17 cases for support but 

ignores the two Initial Decisions that are directly on point: In the Matters of Sky West 

Airlines, consolidated cases FAA-2011-0485, FAA-2011-0486 and FAA-2011-0779. 

Indeed, the FAA does not deign to acknowledge the existence of these cases, not even 

in a footnote. It is as if we stand before this Court for the very first time on fresh 

matters. Complainant has such little regard for the previous rulings that it has 

increased its sanction demand to an amount 160 times greater than the May 2, 2013, 

sanction, arguing that the increased penalty is justified because SkyWest did not 

learn its lesson- but only days separate the flights from the first consolidated cases 

to the instant cases now pending, and again, every flight predated the first hearing. 

As always, Complainant demands that this Court give "due deference" to its proposed 

penalty, but Complainant gives absolutely none to the Court's previous Initial 

Decisions. 

The Court would not be burdened now if Complainant had proposed a penalty 

in line, or even in the same galaxy, as the prior Initial Decisions but the Complainant 

remains unregenerate. SkyWest comes again to ask relief from the draconian 

penalties meted out on technical, non-safety violations. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 j FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 4 
II. BACKGROUND 

These consolidated matters arise from SkyWest's aircraft loading procedures, 

specifically, the counting and/or placement of items of baggage (including ballast, CO MAT 

and live animals) and recording of the numbers of such items on the Cargo Load Reports 

(CLR's) on fourteen (14) flights over an eight and one-half (8Yz) month period in 2011. 

From the testimonies of the FAA inspectors who observed the offloading of baggage on 

these flights, there is no dispute that the amounts of baggage offloaded from each of these 

flights differed from what was recorded on the flight crews' copies of the Cargo Load 

Reports (CLR). However, SkyWest submits that these discrepancies were the product of 

human error1 as the rampers followed approved procedures- but made mistakes. 

1 Compounding inherent human errors in counting is the ramp environment 

itself-i.e., multiple activities involving multiple aircraft that are arriving, departing 

and being serviced, weather and environmental conditions, exposure to the 

elements, differing conditions of light and darkness and noise, which witnesses 

described as hostile or chaotic (For example, please see testimony of SkyWest 

Manager of Ground Operations Training, jay Christensen, Tr. 428:22-429:20, among 

several of the SkyWest witnesses to testified to same). Complainant did not contest 

or rebut this extensive testimony. In fact, SkyWest's expert, Carl Salamone (who 

holds a degree in Aviation Human Factors [Tr. 232]), testified that he was not 

surprised to see baggage count discrepancies when humans are loading aircraft (Tr. 

280:19-281:15). 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063/ FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 5 
This is where Complainant continues to argue the fiction that failed before: Massive 

penalties should be imposed because SkyWest "did not know the weight and balance of the 

aircraft before departure." (Complainant's Post Trial Brief at '1[1). Of course SkyWest did 

not "know" the weight of its aircraft prior to departure because SkyWest, like most carriers, 

utilizes an average weights program, as reflected in SkyWest's Weight & Balance Operations 

Manual, Special Procedure [SP] 4100 (Exhibit R-1-1; hereinafter, "the W&B Manual") to 

govern the loading and computation of weight and balance of its aircraft. 2 SkyWest can 

2 Under Paragraph A098 of its Operations Specifications ("OpSpecs") SkyWest 

is authorized to utilize average weights for passengers, carry-on personal items, 

planeside loaded items and checked baggage. Average weights for baggage are as 

follows: 

- planeside-loaded items and standard bags: 30 pounds per item. (It should be 

noted that while carry-on items [including items placed in the overhead bins] have 

zero weight, if those items [for any reason] are removed from the overhead bins and 

placed in the cargo hold, they then are given a 30-pound weight. Likewise a carry-on 

item that would fit in the overhead bin of one of SkyWest's regional jets and given a 

zero weight would be given a 30-pound weight on the EMB-120 Brasilia as the 

overhead bins on the Brasilia are considerably smaller. See Tr. 378:21-380:6); 

-heavy checked bags: Although heavy bags are defined as any bag weighing 

more than 50 pounds, but less than 100 pounds, they are accorded a weight of 60 

pounds per item; and 

-live animals: 30-60 pounds per animal. (However, as SkyWest's Jeremy 

Barclay testified, if the live animal is carried on board the passenger compartment, it 

is accorded zero weight and if the animal is shipped as cargo, it and its kennel or 

container, are assigned actual weight (Tr. 380:17-381:14]). 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 6 
follow this program to a ''T" and still not know the actual weight of the aircraft, because the 

program relies on estimates. For example, the program presumes that Complainant's 

counsel, Mr. Harper, and SkyWest's co-counsel, Mr. Emerson, weigh the same amount, when 

clearly there is more than two checked bags worth of variance between them. Taking it to 

the extreme, a 90-pound ballerina and a 300-pound linebacker weigh the same! Instead of 

actual weights (which would involve weighing passengers, resulting in a second American 

revolution) the FAA has allowed the airlines to develop an average weight program where, 

as here, massive buffers are in place to ensure that operational limitations of the aircraft are 

never exceeded. Thanks to these buffers, the aircraft is always heavier on paper than it is in 

reality, and as the FAA admits, none of the alleged discrepancies resulted in an overweight 

or out-of-balance operation. The incongruity arises when the FAA reads precision into an 

estimated program and demands $40,000 for a zero pound discrepancy (Flight 4540). 

Average weights for passengers are as follows: 

-adult: 195 pounds (winter); 190 pounds (summer). In other words a 

ballerina and a linebacker are accorded the same weight; and 

-child: 87 pounds (winter) and 82 pounds (summer). In other words, for 

weight and balance purposes, a three-year old and a 12-year old are treated the 

same. 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 7 
As noted above, each of the subject flights predate the October 2, 2012 hearing and the 

Initial Decisions of May 2, 2013 in FDMS Dockets Nos. FAA-2011-0485, FAA-2011-0486, and 

FAA-2011-0680 & 07793, where the FAA lodged the same alleged violations (Federal 

Aviation Regulations [FAR] Sections 119.5(g) 4, 119.5(1) 5, 121.693(a), 121.693(c) and 

121.693(d) 6 7) for similar facts and identical issues and sought civil penalties in the amount 

of $33,000.00 per flight. 

3 By Order served May 5, 2014, the Administrative Law Judge granted 

SkyWest's Request for Judicial Notice dated April18, 2014, which included the Initial 

Decisions (Item 1.a.). 

4 119.5(g)- No person may operate as a direct air carrier or as a commercial 

operator without, or in violation of, an appropriate certificate and appropriate 

operations specifications. No person may operate as a direct air carrier or as a 

commercial operator in violation of any deviation or exemption authority, if issued to 

that person or that person's representative. 

5 119.5(1) -No person may operate an aircraft under this part, part 121 of this 

chapter, or part 135 of this chapter in violation of an air carrier operating certificate, 

operating certificate, or appropriate operations specifications issued under this part. 

6 121.693 -The load manifest must contain the following information 

concerning the loading of the airplane at takeoff time: 

(a) The weight of the aircraft, fuel and oil, cargo and baggage, passengers and 

crewmembers; 

(c) The total weight computed under approved procedures; and 

(d) Evidence that the aircraft is loaded according to an approved schedule 

that insures that the center of gravity is within approved limits. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904: 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 8 
In the Initial Decisions in these prior cases, the Administrative Law judge: 

(1) dismissed all of the FAR 121.693 charges, finding that the load 

manifests had been compiled in accordance with SkyWest's Operations 

Specifications and its Weight & Balance ["W&B"] Manual to ensure that 

the aircraft weights and centers of gravity were within limits; 

(2) concluded that the distinction between Sections 119.5 (g) and 119.5 (I) 

was "inconsequential" and "as [sic] such penalizing ... [SkyWest] for 

both violations would be unjustified";S 

(3) found that the violations were technical in nature, as they had no 

material effect on weight and balance or on aircraft performance. In 

no instance was safety of flight at even the slightest risk; 

7 With respect to Complainant's allegation of violation of Section 121.693 (d), 

cited in footnote 4 above, Complainant adduced absolutely no testimony or evidence 

as to "an approved schedule". What, if anything, this schedule may be or how 

SkyWest allegedly failed to use it has not been shown by Complainant and as such, 

this allegation of violation should be summarily dismissed. 

8 Ignoring the Administrative Law judge's findings, Complainant again asserts 

that Sections 119.S(g) and 119.5(1) are separate violations as each requires proof of a 

fact the other does not; the critical distinction being that (g) regulates operations as 

an air carrier and (I) regulates the operation of an aircraft. In other words, 

Complainant has alleged that SkyWest violated section (I) for operating an air carrier 

aircraft in violation of its Ops Specs and section (g) for operating an air carrier 

aircraft in violation of Ops Specs. Obviously, SkyWest cannot operate an air carrier 

aircraft without operating an aircraft. This is a distinction without a difference. 

What it comes down to is a renewed attempt by Complainant to stack and multiply 

penalties for the same act. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 9 
( 4) determined that Complainant's seeking multiple penalties for multiple 

violations from a single instance of noncompliance was akin to 

compounding the violation, contrary to the prohibitions contained in 

FAA Order 2150.38, pp.7-10; and 

(5) found that one civil penalty in a minimal amount of $250 per violation 

suffices, reducing the civil penalties from $33,000 per flight to $250 

per flight. 

Although Complainant did not appeal the Initial Decisions, it now seeks even greater 

penalties for substantially identical cases that arose contemporaneously with the prior 

ones, totally ignoring the Judge's findings. In the prior cases, Complainant sought penalties 

of $33,000 per flight, which the Judge reduced to $250 per flight. Now, Complainant seeks 

penalties of $40,000.00 per flight, for a total penalty of $560,000.00. Deference to the 

Court, or perhaps humility, might have given Complainant some pause before it demanded 

a penalty 160 times greater per flight than this Court ordered on May 2, 2013, but 

Complainant proceeds as if those decisions never happened. 

As in the prior cases, safety of flight was neither affected nor compromised--any 

weight discrepancies caused by the inadvertent miscounting of bags were nominal and had 

no effect on the weight and balance, or performance and handling of the aircraft. There is 

absolutely nothing that distinguishes the instant cases from the prior ones. These cases do 

not arise from a culture of noncompliance. Rather, they are the product of inescapable 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 10 
human factors-here simple human errors in counting and arithmetic. As long as humans 

are involved, there will be counting errors, no matter how much you train them or how 

much technology you put in their hands. The only question is how much should it cost 

when it inevitably happens? 

This Court has already answered that question. These cases should be disposed of 

with minimal civil penalties for inadvertent technical noncompliance. 

III. SKYWEST'S WEIGHT & BALANCE PROGRAM 

The FAA has long recognized that the use of actual baggage and passenger weights 

is impractical, which is why the FAA AC120-27E, Average Weight Programs permits average 

weight programs.9 In essence, in publishing this Advisory Circular, which permits a 2% 

margin of error, and in approving air carrier average weights programs, the FAA has 

acknowledged that there is no automatic danger caused by small discrepancies between 

the load manifest and actual aircraft weight. Under these average weight programs, it is 

9 The Court, in its Order dated May 5, 2014 has given AC120-27E judicial 

notice. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page II 
implicitly understood that the load manifest may not reflect actual aircraft weight. 10 Here, 

none of the flights at issue exceeded the 2% margin specified in the Advisory Circular. 

SkyWest's Weight & Balance ("W&B") Manual instructs loading personnel to write 

the total number of standard checked, heavy checked and planeside valet bags, live animals 

and other items such as CO MAT, ballast and freight loaded onto the aircraft on the CLR. 

This is a manual process and ground personnel are encouraged to use the tally stroke sheet 

on the reverse side of the CLR (Tr. 395:4-10). Scanners, originally designed to track 

movement of baggage through the system are also used (depending upon which 

codesharing carrier is actually performing the aircraft loading and baggage count (Tr. 

395:16-396:1)). While the CLR (which is prepared in duplicate, i.e., originating station 

copy and flight crew copy) is supposed to reflect the baggage and cargo loaded onto the 

aircraft, there are provisions for last minute changes after the CLR has been prepared and 

to SkyWest's Director of Safety Policy and Security, Jeremy Barclay, testified 

that the weight reflected in a load manifest (even if correctly prepared) reflects the 

average weights and may not correspond to the actual weight of the aircraft. Tr. 

381:22-382:10. As such, Complainant's statement: "As a regulatory minimum, the 

load manifest must reflect the aircraft's actual loading .... " (Complainant's Post-Trial 

Brief at 6) is incorrect. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874: 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869: 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

[Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 12 
no modification or amendment of the CLR is required if verbally authorized by the flight 

crew. 11 

In all but two instances (Flights 6756 and 6991 in FAA-2012-0872/2011NM060047) 

the CLR's utilized by the FAA are the flight crew copies. With these two exceptions, the FAA 

did not request the preservation of the originating stations' CLR's and, as such, the station 

copies of the CLR's were destroyed in the ordinary course of business, as they are required 

to be retained for only one day. Station copies of the CLR's would most likely have reflected 

any modifications or amendments and the reverse sides of the station copies would have 

had the tally sheets showing how loaded items had been counted. 12 

11 SP4100, Chapter 4, page 16, Section 11, Aircraft Loading, (B) Last minute 

changes. 

12 FAA Inspector Steven Allen did not think that it was necessary to obtain the 

station copies (TR. 33:20). When asked what was on the reverse side of the station 

copy of the CLR, Inspector Adam Perkins testified that there was a "format to help 

the ram per count the bags" (Tr. 76:12), because "it would be easy to lose track in 

your head. It gives him a way manually to keep track of bags as they go on the 

airplane" (Tr. 76:5-8). Even SkyWest FAA Principal Operations Inspector Andrew 

Ayers testified that it would have been beneficial for the FAA to have obtained the 

station copies of the CLR's, with the tally sheets, to see how the loading personnel 

came up with their count (Tr. 210:4-211:4). Yet, only one FAA inspector, 

investigating two flights, obtained the station copies of the CLR, and in one of those 

cases, it showed thatthere was no violation (See Exhibit R-21). 

FAA Case Nos.: 2011NM060038 / FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 13 
With the exception of those two instances, FAA Inspectors assigned to counting 

offloaded baggage did not inquire as to whether the originating station(s) had 

modified the CLR's13 as permitted under SkyWest's Operations Specifications, nor did 

they ask the personnel at the originating stations how they counted the baggage and 

completed the CLR's or ask the flight crews how they had completed the aircraft 

weight and balance or load manifests. Likewise, they did not inquire as to whether 

there had been any last minute changes to the baggage loads after the CLR's and load 

manifests had been prepared. And in one case, FAA inspectors even pulled a "load 

manifest" from the trash. As SkyWest's Director of Aircraft Operations, Christopher 

Brown, testified, a crew could have three or four manifests before they have their 

final manifest-"so you could have several printed copies that have gone to the 

trash ... that are quite irrelevant." (Tr. 319:7-13). 

1). 

IV. BAGGAGE COUNT DISCREPANCIES DID NOT ADVERSELY AFFECT 

AIRCRAFT WEIGHT AND BALANCE. CENTER OF GRAVITY OR AIRCRAFT 

PERFORMANCE. 

A. The Discrepancies Were De Minim us: 

13 SP 4100, Section 11, Aircraft Loading, (B) Last minute changes (Exhibit R-1-

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 14 
Yes, there were discrepancies between the FAA inspectors' counts of offloaded 

items and what had been recorded on 12 of the 14 CLR's. On one CLR, there was also 

one simple 30-pound arithmetic error in computation of CO MAT weight. However, 

for each of the 14 flights, the weight discrepancies were de minim us. As in the prior 

cases, there was no adverse effect on aircraft weight and balance or performance. 

The aircraft remained well within their performance envelopes. There was no 

degradation or compromise to safety. 

The aircraft utilized on the alleged flights were certainly large enough and 

operated at considerably less than their maximum certificated takeoff weights, 

where minor baggage count and weight discrepancies would have had absolutely no 

effect. These aircraft included: 

-Bombardier CL-600-2D24, also known as a CR) 900, a 76-passenger twinengine regional jet having a maximum gross takeoff weight of 84,500 pounds; 

--Bombardier CL-600-2C10, also known as a CRJ700, a 70-passenger twinengine regional jet having a maximum gross takeoff weight of 75,000 pounds; 

-Bombardier CL-600-2B19, also known as a CRJ200, a 50-passenger twinengine regional jet having a maximum gross takeoff weight of 53,000 pounds; and 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 15 
-Embraer EMB-120 Brasilia, a 30-passenger twin turboprop having a 

maximum gross takeoff weight of 26,400 pounds. 

The weight discrepancies between what was recorded on the CLR's and what the 

FAA inspectors computed ranged from 0 to 390 pounds (with the vast majority being 

in the 30-120 pound range), having no effect whatsoever on aircraft center of gravity 

or performance. The following testimony was unrefuted: 

Q Mr. Salamone, you performed an aircraft takeoff weight analysis for the 

14 flights in question in these cases in your report.14 Under the weights that 

the crew had recorded and believed that they were operating under, in any of 

those 14 flights, did the aircraft takeoff weight exceed the maximums? 

A No, they did not. 

14 Mr. Salamone testified as to his methodology: 

.. .1 took all information that was available to me, the cargo load reports, the 

load manifests, electronic, if available, the inspector's statement from the FAA, 

as far as the alleged weight or items that may have been present. And also 

then, the manufacturer documentation for the Canadair series jets to 

determine performance and the weight and balance in that respect. (Tr. 

237:10-19). 

Mr. Salamone also considered runway lengths (TR. 237:20-22), air 

temperature (Tr. 238:1-2), fuel and fuel weights (TR. 238:3-4), passenger weight (Tr: 

238:20-22), cargo, luggage, ballast and the actual weight of the aircraft itself (Tr. 

239:1-16). 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012·0873; 2011NM060072 I FDMS FAA-2012·0869; 2011NM060073 

I FDMS FAA-2012·0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013·0617; and 2012NM060014 I FDMS FAA-2013·0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 16 
Q Were they unsafe in any way? 

A I don't believe so. 

Q Okay, but how about as observed by the FAA inspector, adding 

additional weight for bags and subtracting weight for bags, or the ballast or 

cargo that may not have been accounted for by the crew? Adding those and 

subtracting those, did you find that the aircraft weight exceeded tolerances? 

A I did not. 

Q Or was unsafe in any way? 

A No, I did not. 

Q How about for an aircraft takeoff center of gravity? Again two parts, as 

calculated by the crew on those 14 flights, did you find any of those 14 flights 

where the center of gravity left the manufacturer's suggested limits? 

A I did not. 

Q How about as perceived by the FAA inspector? 

A I did not. 

Q Then the last factor for aircraft runway performance and climb 

performance and maximum operating altitude. In your calculations, were the 

crew calculations accurate as pertaining to the cargo and weight they believed 

that they had? 

A Yes. 

Q And did those calculations exceed the manufacturer's suggested 

limitations? 

A. It did not. 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 17 
Q How about as perceived by the FAA inspectors? 

A No, they did not. 

Q So in all three of those factors, either as calculated by the SkyWest 

crews at the time or adjusting for the observed variations by FAA inspectors, 

none of the flights would have been in excess of the manufacturer's 

limitations for takeoff weight, center of gravity, runway performance, climb 

performance, or maximum operating altitude? 

A That is correct. None of these flights would have had any exceedance. (Tr. 

241:11-243:20; Exhibits R-3-1 and R-3-3). 

B. Case-by-Case Analysis: 

FAA-2012-0874 I2011NM060038: 

On March 3, 2011, at San Diego International Airport (SAN), SkyWest 

operated NSOOSK, a CRJ 900, as Flight 4553 to Salt Lake City, Utah (SLC). FAA 

inspectors at SLC observed 43 Standard Checked Bags, three Heavy Checked Bags, 

and one live animal being offloaded. The CLR listed 46 Standard Checked Bags, 0 

Heavy Checked Bags, and no live animals.15 However, the total bag count (comparing 

15 According to Exhibit R-9, the aircraft was loaded and the CLR was prepared 

by Delta Air Lines personnel. 

FAA Case Nos.: 2011NM060038I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA· 

2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 18 
the CLR and the FAA Inspector's counts) was the same. The total CLR weight 

difference, with the 3 heavy bags and one live animal would have been somewhere 

between 120-150 pounds, depending upon the size and weight of the animal. 

However, as CLR clearly shows that "live animals"16 were loaded in the aft cargo 

section, and presumably counted in the preparation of the load manifest weight, the 

CLR weight difference could have been as low as 90 pounds. Be that as it may, as Mr. 

Salamone testified, the aircraft remained within center of gravity and weight and 

balance (Tr. 244:19-245:1). Additionally, the aircraft was still6,238 pounds below 

its maximum takeoff weight (Salamone Report, Exhibit R-3-2, p. 4). 

On March 3, 2011, at Phoenix Sky Harbor Airport (PHX), SkyWest operated 

N614SK, a CR) 700, as Flight 4445 to SLC. FAA inspectors at SLC observed 43 

standard checked bags and three heavy checked bags being offloaded. However, the 

CLR listed 46 standard bags and no heavy bags.17 However, the total bag count 

(comparing the CLR and the FAA Inspector's counts) was the same. The total weight 

16 Exactly what were the "live animals" on Flights 4557 and 4613? None of the 

FAA inspectors seemed to recall what they were or whether they were checked as 

baggage or shipped as freight (Tr. 79:2-8; TR. 84:1-4). 

17 According to Exhibit R-9, the aircraft was loaded and the CLR was prepared 

by Delta Air Lines personnel. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 19 
difference would have been 90 pounds, which as Mr. Salamone testified would have 

had no effect on the operation of the aircraft, as the aircraft was some 4,363 pounds 

below its maximum gross takeoff weight for that runway (Tr. 245:11-250:3; Exhibit 

R-3-2, p. 5). 

On March 3, 2011, at Missoula International Airport (MSO) SkyWest operated 

N465SW, a CRJ 200, as Flight 4540 to SLC. At SLC FAA inspectors observed 250 

pounds of ballast and 100 pounds CO MAT being offloaded. The FAA has alleged that 

the CLR listed 350 pounds of COMAT. 18 However, the total weight of the CO MAT and 

ballast were exactly the same, with absolutely no change in aircraft performance (Tr. 

250:4-251:5; Exhibit R-3-2, p.6). 

Moreover, as subsequently produced documents from the FAA indicate, there 

was a second CLR (i.e., the corrected station copy) which reflects an update by the 

departing station, correctly listing 250 pounds of ballast and 100 pounds of CO MAT 

(Exhibit R-21). This CLR was correct and the weights on the load manifest 

corresponded to the CLR. So where is the violation? 

18 According to Exhibit R-9, the aircraft was loaded and the CLR was prepared 

by Regional Elite Airline Services, a Delta Air Lines subsidiary. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874: 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 20 
On March 3, 2011, at Omaha (OMA), SkyWest operated N816SK, a CRJ 900, as 

Flight 4613 to SLC. FAA inspectors at SLC observed two live animals being offloaded, 

but the CLR for Flight 4613listed "0 live animals". However, that CLR shows 30 

pounds of freight, which likely reflected the weight of the animals.19 Other than the 

omission of the description of the freight as "live animals", the load manifest was 

100% accurate (Tr. 251:6-252:6; Exhibit R-3-2, p. 7). 

FAA-2012-0872 I 2011NM060047: 

On March 8, 2011 at Los Angeles International Airport (LAX), SkyWest 

operated N804SK, a CRJ 900, as Flight 4464 to Las Vegas, Nevada (LAS). FAA 

inspectors at LAS observed two heavy checked bags being offloaded. However the 

CLR listed no heavy checked bags.20 However, it is not possible to determine if the 

heavy bags were included in the standard bag piece count, or not counted at all. If 

the heavy bags had been included in the total piece count, the CLR weight differential 

19 According to Exhibit R-9, the aircraft was loaded and the CLR was prepared 

by Regional Elite Airlines Services, a Delta Air Lines subsidiary. 

zo According to Exhibit R-9, aircraft loading and the CLR was prepared by 

Delta Air Lines. In fact, FAA Inspector Steven Allen conceded that before he 

contacted SkyWest, he contacted Delta, which loaded the aircraft (Tr. 34:19-36:5). 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA· 

2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 21 
would have been 60 pounds. If the two heavy bags were not included in the total 

piece count, the weight differential would have been 120 pounds. Either way, Mr. 

Salamone testified that there would have had no effect on the operation of the 

aircraft, as the aircraft was some 6,64 7 pounds below its maximum gross takeoff 

weight for that runway (Tr. 252:18-254:2 and Exhibit R-3-2, p. 8). 

On March 9, 2011 at Chicago O'Hare International Airport (ORD), Chicago, 

Illinois, SkyWest operated N907SW, a CRJ 200, as Flight 6756 to Colorado Springs 

(COS). FAA inspectors at COS observed one heavy checked bag being offloaded. 

However, the CLR listed no heavy checked bags. 21 The FAA did not determine 

whether the observed heavy bag had been included in the standard bag piece count, 

or not counted at alL As Mr. Salamone testified, if the total piece count was correct, 

the CLR weight differential would have been 30 pounds.22 Whether or not the heavy 

21 According to Exhibit R-9, all aircraft loading and CLR preparation at ORD 

was handled by United Airlines. 

22 FAA Inspector Michelle Wallentine was positioned at COS on three different 

dates (April 7, May 5 and July 14, 2011) to count baggage as part of the FAA's special 

emphasis inspection of SkyWest. She observed and participated in the baggage 

counts for some 30 flights over those three days and with the exception the three 

cases in which she is involved, she saw no irregularities or baggage miscounts (Tr. 

125:22-127:14). 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 22 
bag had been included in the total piece count, there would have been no effect on 

aircraft weight and balance, center of gravity or performance as the aircraft was 

2,686 pounds below its maximum takeoff weight limit (Tr. 255:5-256:1; Exhibit R-3-

2, p, 9.) 

On March 9, 2011, at ORO, SkyWest operated N973SW, a CR) 200, as Flight 

6991 bound for COS. FAA inspectors at COS observed two heavy bags being 

offloaded. However, the CLR listed no heavy bags. The FAA inspectors did not 

determine whether the observed heavy bags were included in the standard bag piece 

count, or not counted at alL As Mr. Salamone testified, if the total piece count was 

correct, the CLR weight differential would have been 60 pounds. If the heavy bags 

had not been included in the piece count, the weight differential would have been 

120 pounds. Either way, there would have been no effect on aircraft weight and 

balance, center of gravity or performance as the aircraft was 2,523 pounds below its 

maximum takeoff weight limit (Tr. 256:2-257:17; Exhibit R-3-2, p. 10). 

On March 14, 2011, at Denver International Airport (DEN), SkyWest operated 

N679SA, a CR) 200, as Flight 6960 to Sioux Falls Regional Airport (FSD), Sioux Falls, 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 23 
South Dakota. SkyWest personnel at DEN23 loaded one heavy checked bag, but the 

CLR listed no heavy bags. The FAA did not determine whether the observed heavy 

bag was included in the standard bag piece count, or not counted at all. If the total 

piece count was correct, the CLR weight differential would have been 30 pounds. 

Either way, there would have been no effect on aircraft weight and balance, center of 

gravity or performance as the aircraft was 970 pounds below its maximum takeoff 

weight limit (Tr. 257:18-259:4; Exhibit R-3-2, p. 11). 

FAA-2012-0873 I2011NM060063: 

On April 7, 2011, at ORD, SkyWest operated N755SK, a C) 700, as Flight 6756 

to COS. FAA Inspectors who had been dispatched to COS, solely for the purpose of 

counting offloaded bags from SkyWest aircraft observed 33 standard checked bags 

and 2 heavy checked bags coming off the aircraft. 24 The CLR for Flight 6756listed 30 

23 Of the 14 flights alleged, this flight and Flight 4559 (DEN-RKS; Case FAA2013-061/2012NM060014) were the only flights in which SkyWest personnel 

loaded the aircraft and prepared the CLR's. All other flights were handled by 

SkyWest's codeshare major partners, United Airlines, Delta Air Lines and Continental 

Airlines, who loaded the aircraft and prepared the CLR's. 

24 Denver-based FAA Inspector Michelle Wallentine was dispatched to COS on 

three occasions solely for the purpose of counting bags coming off of SkyWest 

aircraft. She performed no surveillance for any other air carrier. While she observed 

three flights with baggage count discrepancies (Flight 6756 and Flights 1160 on May 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 24 
standard checked bags and no heavy checked bags. With the 3 standard bags and 2 

heavy bags, the CLR weight differential would have been 210 pounds. There would 

have been no effect on aircraft weight and balance, center of gravity or performance 

as the aircraft was 5,993 pounds below its maximum takeoff weight limit (Tr. 260:1-

262:2; Exhibit R-3-2, p. 12). 

FAA-2012-08691 2011NM060072: 

On May 5, 2011, at George Bush Intercontinental Airport (IAH), Houston, 

Texas SkyWest operated N744SK, a CRJ 700, as Flight 1160 to COS. At COS, FAA 

inspectors observed 35 standard checked bags being offloaded N744SK However, 

the CLR for Flight 116025 listed 23 standard checked bags. With the additional12 

standard bags, the CLR weight differential would have been 360 pounds. There 

would have been no effect on aircraft weight and balance, center of gravity or 

performance as the aircraft was 5,488 pounds below its maximum takeoff weight 

limit (Tr. 262:2-264:1; Exhibit R-3-2, p. 13). 

5 and july 14, 2011), over the three visits, she inspected and counted bags from some 

thirty SkyWest flights and with the exception of the three flights, there were no 

discrepancies (Tr. 126:6-21). 

25 All aircraft loading and CLR preparation at IAH was handled by Continental 

Airlines. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874: 2011NM060047 I FDMS FAA-2012-0872: 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 25 
FAA-2012-0868 I 2011NM060073: 

On june 2, 2011 at IAH, SkyWest operated N937SW, a CRJ 200, as Flight 5840 

to Charlotte, North Carolina (CLT). At CLT, FAA inspectors observed 27 standard 

bags and 2 0 planes ide loaded bags being offloaded. However the CLR listed 19 

standard checked bags and 15 planeside loaded bags. With the additional 8 standard 

and 5 planeside bags, the CLR weight differential would have been 390 pounds. 

There would have been no effect on aircraft weight and balance, center of gravity or 

performance as the aircraft was 2,914 pounds below its maximum takeoff weight 

limit (Tr. 264:2-266:11: Exhibit R-3-2, p. 14). 

FAA-2012-0904 I 2011NM060081: 

On June 15, 2011, at SLC, SkyWest operated N603SK, a CRJ 700, as Flight 

4781, to Reno-Tahoe International Airport, Nevada (RNO). At RNO, FAA inspectors 

observed 190 pounds of CO MAT, consisting of two items, a 130-pound cable and a 

60-pound box being offloaded. This seems to have been a simple arithmetic error 

and the CLR weight differential was 30 pounds. As FAA Inspector Benjamin Blauer 

testified: 

Q So basically, whoever prepared the CLR showing 160 

pounds probably couldn't add right. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

[Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 26 
A I would have to say that, yes. 

Q Do you have nay other explanation for why the CLR 

would have had this incorrect weight? 

A I do not. 

(Tr.176:3-10). 

Be that as it may, there was no effect on aircraft weight and balance, center of 

gravity or performance as the aircraft was 11,623 pounds below its maximum takeoff 

weight limit (Tr. 266:12-268:10; Exhibit R-3-2, p. 15). 

FAA-2013-0617 12011NM060095: 

On july 14, 2011, at IAH SkyWest operated N742SK, a CRJ 700, as Flight 1160 

to COS. At COS, FAA inspectors observed 43 standard checked bags being offloaded. 

The CLR for Flight 1160 listed 36 standard checked bags. With the additional 7 

standard bags, the CLR weight differential would have been 210 pounds. There 

would have been no effect on aircraft weight and balance, center of gravity or 

performance as the aircraft was 4,384 pounds below its maximum takeoff weight 

limit (Tr. 268:11-270:3; Exhibit R-3-2, p.16). In fact, CG would have changed "no 

more than perhaps the width of a pencil dot on the chart." (Tr. 269:19-270:3). 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 27 
FAA-2013-0619 I 2012NM060014: 

On November 16, 2011 at DEN, SkyWest operated N236SW, an Embraer EMB120-ER, as Flight 5449 to Rock Springs, Wyoming (RKS). SkyWest personnel at DEN 

loaded one heavy checked bag onto N236SW. Although the CLR listed no heavy 

checked bags, the FAA observed a heavy bag being offloaded. The weight differential 

was 60 pounds and there was no effect on aircraft weight and balance, center of 

gravity or performance (Tr. 270:4-272:5; Exhibit R-3-2, p. 17). 

Despite the evidentiary-lacking horrifies with which Complainant attempts to 

buttress its case26, Mr. Salamone's testimony and his written report (Exhibit R-3-2) 

26 i.e., that SkyWest operated aircraft without knowing what was aboard 

thereby endangering the lives of some 750 people (Complainant's Post-Trial Brief at 

2), ignoring potential safety hazards affecting aircraft performance (Complainant's 

Post-Trial Brief at 13-14); that SkyWest's operations were tantamountto "test 

flight"(s) (Complainant's Post-Trial Brief at 14); that SkyWest continues to operate 

aircraft without knowing their correct weight and balance (Complainant's Post-Trial 

Brief at 15); and that "violations are occurring even now (Complainant's Post-Trial 

Brief at 18). In support of these last two outlandish assertions, Complainant cites 

SkyWest's Jeremy Barclay's testimony at Tr. 422:19-423:6. Mr. Barclay's testimony 

says nothing of the sort: 

Q Now, Mr. Barclay, one of the things you testified that 

... [SkyWest] is doing in an effort to get ahead of this problem is you 

are continuing to conduct audits of the Weight and Balance Program. 

Isn't it true that those audits show that there is still an issue with 

weight and balance, these sorts of issues on ... [SkyWest] today? 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 28 
remain uncontroverted. There is no evidence that the aircraft were loaded or 

operated unsafely; there is no evidence that aircraft weight and balance were in any 

way adversely affected; and there is no evidence that aircraft performance was in 

any way adversely affected. 

V. SKYWEST'S PROPOSED W&B MANUAL REVISION 

In an effort to address and minimize the interplay of human factors in the 

baggage loading and counting process and render the issues at bar moot, SkyWest 

attempted to obtain FAA approval of a modification to its W&B Program, similar to 

that which the FAA has previously approved for others27, to permit small variances in 

baggage counts, necessitated by operational considerations.28 Despite SkyWest's 

showing of an equivalent level of safety, the FAA declined to grant this, apparently 

A There are errors that do occur, that's correct. 

Mr. Barclay explained that although SkyWest has addressed the issue, absolute 

human perfection is impossible to achieve (Tr. 424: 16-17). 

27 Exhibit R-4. 

2s Please see Exhibits R-5-1 through R-5-7. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869: 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 29 
preferring instead to initiate enforcement actions and seek exorbitant civil penalties 

for small variances in baggage counts. 

Complainant, erroneously characterizes SkyWest's communications with the 

FAA as a request for exemption under FAR Part 11 (Complainant's Post-Trial Brief at 

22-23), which it was not. All that was requested was a revision to it W&B Program to 

address human factors. As SkyWest's Director of Aircraft Operations, Christopher 

Brown, testified: 

.. .it is recognizing that human factors play a key role in the proper 

completion and counting of a bag-proper completion of the CLR and 

counting ofbags.29 

... We're not making excuses for those errors. We are just accepting 

the fact that there is risk in the environment that these ground agents 

are working in. That there is a risk that they could miscount a bag or 

not put the right number on a cargo load report, that, in turn, would 

lead to a load manifest that was in error.3o 

29 Tr. 304:5-8. 

30 Tr. 304:15-22. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 30 
SkyWest was requesting something considerably more restrictive than what 

the FAA had provided to at least one other carrier.31 In order to have obtained this 

relief, a petition for exemption under FAR Part 11 was not and would not have been 

required. 

Complainant also suggests that SkyWest could have resubmitted its proposal 

to add a specified amount of weight to the basic operating weight of each aircraft. 

This suggestion is meaningless as Complainant states that even this would not have 

excused it from baggage miscount violations. Complainant also ignores tbe fact that 

in each of the 14 flights, the aircraft takeoff weights (even with the FAA's corrected 

bag loads) remained substantially below the maximum gross takeoff weights, so even 

if SkyWest followed Complainant's suggestion and added something to the basic 

operating weight of each of tbe aircraft, this would have achieved nothing as baggage 

count violations, in Complainant's eyes, are inexcusable. 

VI. SKYWEST'S CORRECTIVE ACTIONS: 

31 As Exhibit R-4 reflects, that carrier has a 20-bag/600-pound "cushion". As 

Mr. Brown testified, the relief that SkyWest was seeking was but a fraction oftbat 

(Tr. 107). 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 / FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 31 
As stated in its several affirmative defenses averred in its Answer to 

Complaint: 

SkyWest proactively mitigated any need for enforcement action, in that it has: 

i. Counseled all personnel involved in the loading and counting of the bags 

following each of the alleged incidents; 

ii. Issued numerous Customer Service Training Bulletins directed at 

providing additional training in avoiding bag count discrepancies, 

iii. Updated and revised the aircraft loading procedures, including, but not 

limited to, those set forth in its Station Operations Manual and W&B 

Manual to specifically address said problems and ensure future 

compliance; 

iv. Updated and revised the aircraft loading procedures set forth in its Station 

Operations Manual SP 5500 to specifically address said problems and 

ensure future compliance; 

v. Implemented initiatives to ensure all stations are physically staffed to 

allow one agent to directly account for the aircraft loading process on each 

flight, to ensure accurate physical baggage counts, cargo weights, and 

weight and balance communication with flight deck crews; 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 32 
vi. Performed ongoing and continuing internal evaluations of cargo load 

reporting to ensure that compliance is being achieved; and 

vii. Taken other corrective actions to prevent recurrence.32 

Any and all discrepancies upon which these actions are based are the product 

of simple human arithmetic error and in no way are indicative of SkyWest's 

regulatory compliance disposition as all relevant employees were adequately trained 

and qualified and have since received additional training and internal audits have 

shown that compliance has been achieved.33 

SkyWest has taken all necessary corrective actions to avoid repeated mishaps 

such that additional penalties are redundant and will not result in any decrease in 

safety.34 SkyWest's corrective actions taken since 2009 (when the baggage count 

problems first surfaced) and to date have amounted to some $560,000 (Tr. 408:12-

16; Exhibits 6-1,6-2 and 6-3). These corrective actions were fully substantiated in 

32 SkyWest's Answer to Complaint, Fourth Affirmative Defense. 

33 SkyWest's Answer to Complaint, Sixth Affirmative Defense. Of course this is 

subject to consideration of the interplay of human factors, which as 

substantial evidence has shown, makes it impossible to ensure 100% 

accuracy. 

34 SkyWest's Answer to Complaint, Seventh Affirmative Defense. 

FAA Case Nos.: 2011NM060038/ FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072/ FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081/ FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014/ FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 33 
the testimonies of SkyWest's Jeremy Barclay, Director of Safety Policy and Security, 

Jay Christensen, Manager of Customer Service Ground Operations Training, and 

Maggi Aiken, Director of Customer Service Training and Standards. Their 

testimonies have corroborated each other and remain uncontroverted. 

As Mr. Barclay testified: 

A ... we have tried to identify every point of influence possible 

with this process, which includes developing and enhancing 

standard procedures, disseminating training to front-line 

employees through our Certified Station Trainer Program, 

partnering with other regional carriers in partner standardization 

groups. We have conducted numerous load audits. We've 

enhanced the process that we previously used to kind of know 

where we are with out load counts. 

I'm sure there's a lot of other things that we've done, but those are 

probably the big ones.35 

Yet, Complainant now asserts that SkyWest merely "pays lip service to 

regulatory compliance while remaining focused on the bottom line" (Complainant's 

Post-Trial Brief at 24); that it has "failed to take several actions which would be 

35 Tr. 397:19-398:11. Mr. Barclay also testified that SkyWest has not only 

included representatives of United and Delta in its training, but has attempted to 

standardize procedures for other regional carriers serving United and Delta (Tr. 

398:18-399:4). 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 34 
reasonable from a safety standpoint" (Id.)36 and that SkyWest has corrected nothing 

(I d. at 25). Not only are Complainant's assertions spurious, but they ignore the FAA's 

substantial participation and involvement in SkyWest's corrective actions. 

As Mr. Barclay testified: 

Q In connection with these corrective actions, did 

... [SkyWest] invite FAA participation? 

A We did. Specifically with our Certified Station Trainer 

Conference, which we held annually during Q2 or Q3 of each year, 

where they were invited to come and participate, and even at times 

present their findings and surveillance. 

Q And, did they participate and present? 

A. They did. 

36 Complainant's counsel has suggested that SkyWest should consider 

"delaying departures" (Complainant's Post-Trial Brief at 23) and provide "incentives" 

(albeit undefined) for its ramp personnel (!d. at 24) and that because SkyWest has 

not taken these steps, it has not done everything that it could do to remedy the 

situation. Suffice it to say there is no evidence that the measures proposed by 

Complainant's learned counsel would be either feasible or effective. In fact, 

Complainant's counsel's suggestion that departures should be delayed reflects a 

substantial lack of awareness oftoday's airline operating environment. As SkyWest's 

Maggi Aiken testified, when she started with SkyWest approximately 33 years ago 

(tr. 439:16), SkyWest personnel handled 100 percent of SkyWest's ground 

operations, where as today SkyWest only handles 20-30 percent of its operations (Tr. 

444:22-445:3]. This is also reflected in Exhibit R-9, which shows that the vast 

majority of ground operations, including aircraft loading and weight and balance, are 

handled by SkyWest's major codeshare partners who have contracted with SkyWest 

to provide regional air service on their behalf at their stations. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 35 
Q With respect to SkyWest's corrective actions, have you 

ever received any FAA feedback as to the quality, the presentation, or 

the completeness of the presentation, or the comprehensiveness of the 

presentation? 

A They, obviously, would communicate concern for the 

process. When they attended the conferences, most of the feedback that 

we received was always positive .... in general it was very positive 

feedback. 

Q And when we say the FAA, are we talking about what, 

the CMO? 

A Correct, they would send either an inspector or supervisor to 

attend. At times our principal operations inspector would ... as well. 

Q Did the FAA ever communicate to you or to anybody 

... that ... efforts were not enough, or insufficient, or defective? 

A Again primarily, just concern for, you know, the alleged 

violations at hand. But for the most part, we had monthly telecons. If memory 

serves me correctly, we had monthly telecons with them, explaining what our 

corrective actions were in order, made attempts to be very transparent, and 

during those conversations we didn't receive any negative feedback ... P 

Complainant's brief is the first notice SkyWest has received that its six-year 

effort to reduce bag count errors is insufficient. The criticism would carry more 

weight if it had been elicited, on the stand, from the various members of the CMO 

who monitored and participated in the programs. Instead it rings as a lawyer's 

argument, based on an opinion formed far away from the actual operation. 

37 Tr. 403:13-405:12 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 36 
Even though perfection is unobtainable when thousands of people handle 

millions of bags, SkyWest continues to revise procedures and policies whenever 

improvement can be gained. As Jay Christensen testified, SkyWest is " ... constantly 

revising our procedures and trying to make them better."3B Specifically, with respect 

to weight and balance training, Mr. Christensen testified: 

... that's pretty much been a constant improvement, pretty much from the time 

we started to hear of these cases, knowing that there were issues out there in 

the station, and some of these alleged violations. 

We expanded our training curriculum substantially. We started about 45 of 

training back early when I was in the Department, which pretty much 

included how to fill out a CLR .... We expanded that [initial training] to two 

hours, then expanded it to four hours.39 

In addition to initial training enhancements, SkyWest has enhanced recurrent 

training and revised their SP's 4100 and 5500 to prescribe best practices.40 When 

asked if there is anything else SkyWest could possibly do to eradicate the alleged 

miscounts, Mr. Christensen stated: 

38 Tr. 433:6-7. 

39 TR. 433:13-434:7. 

40 Tr. 434:7-435:18. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 37 
A I think we are constantly striving to get better, and I think 

we've done, in my mind to this point, we've done everything we possibly 

can do, and, you know, we'll continue to strive to get better, but I don't 

think so. 

Q. Because of the human factor? 

A Exactly.41 

The fact that small errors will always occur does not mean SkyWest is not 

following its programs or attempting to achieve perfection. Even the CMO admitted it 

41 Tr. 436:1-8. 

FAA Case Nos.: 2011NM060038I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 38 
had difficulty counting bags accurately during its inspections42 and Complainant's 

counsel was even momentarily nonplussed by the numbers in this case.43 

SkyWest's Director of Customer Service Training and Standards, Maggi Aiken, 

summed up SkyWest's corporate philosophy with respect to regulatory compliance: 

... as an airline, as an operator, we want to be compliant with policy, 

procedure and the regulations. We interface with our CMO, and they have 

requested-they made a statement to us that they will hold us to very high 

standards as a regional carrier, because we are a very large carrier. 

42 (Tr. 451 :20). 

See also the testimony of FAA Principal Operations Inspector Andrew Ayers: 

Q And sometimes counting correctly can be a challenge. 

A. It can. 

Q Whether it is marbles, poker chips, money, bags. It is normal human 

behavior to miscount or forget where you were. 

A Sure. 

Q Have you ever miscounted something? 

A I have. (Tr. 211:11-20). 

43 "Perhaps it proves the point that Sky West has been making that the numbers get 

confusing." Complainant's counsel at hearing (Tr. 194:21-195:1). 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 39 
And so, I want to be compliant. I want to be held to a high standard. I 

want to be the best in the industry, so I try to reflect that down through my 

group in training to be compliant.44 

Describing SkyWest's corporate philosophy regarding FAR compliance, Ms. 

Aiken summed it up as follows: "It's non-negotiable" (Tr. 444: 10-11). 

SkyWest's corporate philosophy regarding training, according to Ms. Aiken is 

"one ofthe best in the industry" (Tr. 443:2-3): 

We have a very quality training program, and have had people come 

from other airlines and tell us so, that we go above and beyond in a 

lot of the training, compared to what they had received at other 

carriers.45 

The goal of this training is: 

To teach our people how to load the aircraft, and to ensure we run a 

safe operation, to teach them how to be the best agents. 

To minimize the human factors, certainly. Due to the number of 

people handling our aircraft, we do, with our own people, the best 

that we can do in our training to minimize that, because we know it's 

44 Tr. 442:10-21. 

45 Tr. 443:15-19. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 40 
going to happen, we teach them the right way to handle and load the 

aircraft. 46 

SkyWest has trained other air carriers, including its code share 

partners, United and Delta (Tr. 444:1-6). But a lingering problem is the lack 

of standardization among carriers, i.e., every airline has a different weight 

and balance program, with its own procedures and forms. According to Ms. 

Aiken, SkyWest has been a leader in standardizing the process (TR. 450:3-

451:5) to reduce the potential for human error. A miscount is not necessarily 

the result oflack of training, but is rather the product of human factors and 

the ramp environment (Tr. 451:9-15). As SkyWest expert Carl Salamone 

testified: 

I think that the most difficult aspect of aircraft loading and baggage 

handling has to do with the environment around which it is 

centered. The ramp environment it may have temperature 

swings ... noise and vibration .. .light, darkness issues, as well as a 

flurry of activity making focus difficult .... 

... humans ... have a difficult time inherently with counting, and 

when you throw in some difficult environmental factors, it makes 

that task even more difficult. And it is really the effects of the 

environment on human performance that could have negative 

implications .... 

46 Tr. 449:7-19. 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 41 
... ! think that it is reasonable to strive for perfection but 

unreasonable to expect perfection with the sheer volume of bags 

that is handled .... 47 

VII. CONCLUSION--CASES INVOLVING SIMPLE INNOCENT 

HUMAN ERROR DO NOT MERIT THE SEVERE SANCTION 

THAT COMPLAINANT SEEKS: 

These cases all involve human error-which the FAA has long 

recognized as being "inescapable and undeniable". 48 The aircraft ramp 

presents a challenging environment--noise, vibration, temperature swings, 

distractions, psychological, social, biological and other factors that come into 

play that can alter and limit human performance.49 Human limitation on the 

process of loading and counting baggage on aircraft makes it practically 

impossible to ensure 100% accuracy. so 

47 Testimony ofSkyWest's expert, Carl Salamone (Tr. 280:11-281:15). 

48 FAA Order 9550.8, Human Factors Policy 

49 Aside from Messrs. Salamone's, Brown's, Barclay's and Christensen's and 

Ms. Aiken's testimonies in the instant matter, see FDMS Nos. FAA-2011-0485/0486 

and FAA-2011-0779 Hearing Transcript 118:2-9 

so !d. at 124:11-22;125:1 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 42 
Despite the baggage miscounts on 14 of some 440,000 flights, there was no 

compromise to safety. All flights fell well within both manufacturers' 

recommendations and within performance ranges calculated by each flight crew. 

Moreover, there is no indication, whatsoever, of any Company-wide noncompliance 

mindset. Quite to the contrary, as SkyWest's witnesses testified, SkyWest takes 

regulatory compliance very seriously. Regulatory compliance as SkyWest's Maggi 

Aiken is "not negotiable." SkyWest's policy towards FAA compliance is to put 

compliance first, to follow the regulations, and to set a good example. Training is 

intended to be proactive and to be the best in the industry. Where SkyWest sees best 

practices used by other airlines, it incorporates those practices where applicable51 

(and when allowed by the FAA). 

Complainant seeks a total penalty of $560,000, or $40,000 per flight for simple 

human counting and arithmetic errors--matters in which the Administrative Law 

judge in the prior cases clearly concluded were technical in nature and did not affect 

Sl In addition to Mr. Barclay's, Mr. Christensen's and Ms. Aiken's testimony in 

the instant case, see FDMS Nos. 2011-0485/0486 and FAA 2011-0779 Hearing 

Transcript at 172:15-22;173:1-15 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012·0872; 

2011NM0600631 FDMS FAA-2012·0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 43 
safety of flight, 52 and which Complainant did not appeal. Again, what, if anything, 

has changed in the instant cases that compels any different result? Complainant's 

proposed sanction in these cases is excessive, unreasonable, inappropriate and 

unwarranted by the facts. Any penalty imposed should be substantially reduced in 

line with the prior identical cases. 53 

Complainant has accused SkyWest of merely paying "lip service" to training. 

However, while Complainant acknowledges that it should consider error tolerance 

systems that take into consideration human limitations (FAA Order 9550.8, Human 

Factors Policy), and has done so for other airlines, it has merely given "lip service" to 

human factors in SkyWest's case-refusing to permit SkyWest to amend its W&B 

Program to address human performance issues54 --while wasting agency resources, 

52 Initial Decisions in FDMS FAA-2011-0779 and FAA-201100485/0486: 

The violations found were technical in nature. They had no material effect 

on weight and balance or on aircraft performance. Respondent showed 

that in no instance was safety of flight at even the slightest risk. (Initial 

Decisions at 7). 

53 Again, these "prior cases" arose contemporaneously with the instant cases. 

They were merely litigated 1 'h years earlier. 

54 FDMS Nos. 2011-0485/0486 and FAA 2011-0779 Hearing Transcript 

112:19-22;113:1-17 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 44 
positioning qualified aviation inspectors at various airports throughout the country 

to sit and wait for arrivals of SkyWest aircraft and count baggage. Complainant could 

better deploy its otherwise valuable resources. 

There has been extensive evidence of the substantial corrective actions that 

SkyWest has taken to prevent human error in counting baggage, including, among 

other things, enhanced initial and recurrent training, annual W&B Workshop 

Conferences, self audits to ensure compliance, online CLR training courses; focus 

groups conducted with frontline agents to better understand where potentials for 

error exist; better coordination with contract stations and code-sharing carriers 

handling SkyWest's aircraft loading; manual, policy and procedure revisions; and 

working with other carriers and the FAA55 to design industry-leading training and 

standardization of ground operations-all with the intended objective of improving 

accuracy and reducing the likelihood of human error. 

55 The FAA's Salt Lake City Certificate Management Office (CMO) participated in 

SkyWest's efforts. Representatives of the CMO attended and participated in 

SkyWest's W&B training and never stated that it was insufficient or ineffective. 

SkyWest had periodic teleconferences with its CMO to ensure SkyWest's compliance 

efforts were satisfactory, and again, the FAA never offered even a hint that SkyWest's 

actions were in anyway inadequate or "ineffectual". 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 45 
Interestingly, in the prior cases, Complainant lodged substantially similar 

criticisms ofSkyWest's corrective actions. In its Post-Trial Brief in the prior cases, 

Complainant cited the 21 different measures taken by SkyWest, claiming that 14 did 

not work and 7 are just a "rehash [of] previous efforts known to be ineffectuai".S6 

This statement calls into question the nature of the FAA's enforcement policy as 

SkyWest took extensive efforts to collaborate with the FAA to ensure its W&B 

program and baggage/ cargo loading procedures were adequate and the FAA is now, 

with apparent 20-20 hindsight, saying it was not enough. On multiple occasions 

SkyWest met and worked with the FAA in formulating many of its corrective actions. 

The fact is, there is no magic silver bullet that is absolutely guaranteed to prevent 

human error 100 percent of the time. And to the extent that these matters arose as a 

result of simple human error, no civil penalty, large or small, is going to prevent 

recurrence. 

Complainant additionally attempts to justify the proposed penalty on the 

grounds that SkyWest can afford it, citing SkyWest's 2013 Annual Report which 

56 Complainant's Post-Trial Brief, page 12-13 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 46 
shows a net profit for that year of $135,519,000.57 SkyWest operated 620,500 flights 

in 2013, which means it made $218.40 per flight. At the proposed $40,000 penalty, 

SkyWest would have to operate 184 flights to pay for a single miscounted bag! 

Ability to pay should not in and of itself justify a sanction which is 

unreasonable, excessive and unwarranted. 

In conclusion, should the Administrative Law judge determine that a sanction is 

required, SkyWest requests that it be reduced for the reasons set forth above. 

DATED this 4'h day of August, 2014. 

Michael L. Dworkin 

Co-Counsel for SlzyWest Airlines 

57 Complainant's Post-Trial Brief at 20. However, SkyWest's Annual Report is 

not in evidence, nor has Complainant requested judicial notice of same. Moreover, 

the Annual Report is for 2013, but these cases arose in 2011. In 2011, according to 

SkyWest's Annual Report for that year, it had a net loss of $27.8 million. 

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 

(Consolidated] 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 47 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 4th day of August, 2014, a 

true and correct copy of the foregoing: 

POST-TRIAL BRIEF 

was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New jersey Avenue, S.E. 

East Building Ground Floor, 

Room E12-320 

Washington, D.C. 20590 

Email: richard.goodwin@dot.gov 

{FED EX and Email} 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

{FED EX} 

jeffrey M. Harper 

Federal Aviation Administration 

Northwest Mountain Region, ANM-7 

1601 Lind Avenue S.W. 

Renton, Washington 98057 

Fax: (425) 227-1007 

Email: Jeffrey.harper@.l?-a.gov 

{FED EX, FAX and Email} 

(}tAltiiU t11;JJ!uz ) 

CAITLIN M. MILLER 

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 

2011NM060063 I FDMS FAA-2012-0873; 2011NM060072 I FDMS FAA-2012-0869; 2011NM060073 

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 I FDMS FAA-2013-0619 

(Consolidated) 

SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

Page 48