U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

RECEIVED 

SEP 1 6 2015 

HEARING DOCKET 

FEDERAL AVIATION 

ADMINISTRATION 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Complainant. 

v. 

Docket No. 2011NM060073; 2011NM060072; 

2011NM060047; 2011NM060063; 2011NM060038; 

2011NM060081; 2011NM060095; 2012NM060014 

FDMS No. FAA-2012-0868; FAA-2012-0869; 

FAA-2012-0872; FAA-2012-0873; FAA-2012-

0874; FAA-2012-0904; F AA-2013-0617; 

FAA-2013-0619 

SKYWEST AIRLINES 

Respondent. 

COMPLAINANT'S APPEAL BRIEF 

Pursuant to section 13.233(d) of the Rules of Practice, 14 C.F.R. § 13.233(d), Complainant files this 

brief in support of its appeal of the Initial Decision issued by Administrative Law Judge Richard C. 

Goodwin on July 16, 2015, in the above-captioned matters. 

I. STATEMENT OF THE CASE 

This case arises from eight separate Final Notices of Proposed Civil Penalty issued to Sky West 

Airlines ("Sky West" or "Respondent") alleging that it failed to load aircraft in accordance with its Weight 

and Balance Manual, incorporated into its operations specifications, and to prepare an accurate load 

manifest in connection with 14 separate flights over the course of the eight-month period between March 3, 

2011, and November 16, 2011, in violation of 14 C.F.R. §§ 119.5(g) & (1), 121.693(a), (c), & (d). The eight 

cases were consolidated by an Order dated August 21, 2013, and a hearing was held before Administrative 

Law Judge (ALJ) Richard C. Goodwin on May 19-20, 2014. On July 16, 2015, the ALJ issued eight 

separate decisions, which collectively found that Respondent violated 14 C.F.R. §§ 119.5(g) & (I) for 13 of 

the 14 alleged flights (with the exception of Flight 4540 alleged in FAA-2012-0874) by failing to 

1 
accurately prepare a Cargo Load Report in accordance with its Weight and Balance Manual. The ALJ also 

found that Complainant failed to make a prima .facie case as to the violations of 14 C.F.R. §§ 121.693(a), 

(c), & (d), which requires, among other things, the load manifest to contain the weight of the cargo and 

baggage, the total weight computed under approved procedures, and evidence that the aircraft is loaded 

according to an approved schedule. In consideration of these findings, the ALJ assessed a nominal penalty 

of$250 limited to the 13 flights for which he found a violation of 14 C.F.R. §§ 119.5(g) & (1), for an 

aggregate penalty of$3,250. Complainant timely appealed each of the ALI's eight decisions, and files this 

consolidated brief in support of its appeal. 

Tl. STATEMENT OF THE FACTS 

On 14 separate occasions over the course of an eight-month period, Respondent failed to load its 

aircraft in accordance with the requirements of its Weight and Balance Manual (also known as Standard 

Practice (SP) 4100) (Ex-R-1-1), which requires the total count of each type of baggage and other cargo, 

including standard bags, heavy bags, planeside items, ballast, company material, and live animals, to be 

delineated on the Cargo Load Report (CLR). 1 (See Ex. R-1-1, Page 4-1 0; F AA-20 12-0869 Compl. ~ II.9, 

Answer~ II.9). The CLR is a two-part form and is the primary document used to communicate weight and 

balance information from the designated loading agent (who receives the baggage) to the pilot in command 

(PIC). (Ex. R-1-1, Page 3-8, ~ 4.a). For each of these 14 instances, an Aviation Safety Inspector (ASI) 

testified that the count of baggage and cargo he or she observed being unloaded from the aircraft did not 

match the amount of standard bags, heavy bags, ballast, company material, and/or live animals listed on 

each flight's CLR.Z For an illustrative example, on May 5, 2011, Respondent loaded and operated Flight 

1160 from Houston to Colorado Springs. (Tr. 114-15). The CLR for this flight indicated that there were 23 

1 This appeal pertains to 14 separate flights pled across eight separate Complaints. In the interest of brevity, the evidence 

and testimony providing the basis for the violations that occurred on each of the 14 flights are not detailed in this section. A 

chart providing the testimony and documentary evidence that corresponds to each flight is attached as Appendix A. This 

Appendix was submitted as a part of Complainant's Post-Trial Brief and is therefore part of the administrative record. 

2 See Appendix A. See also Tr. 41-43 for Flight 5840; Tr. 116-17 for Flight 1160; Tr. 23-24 for Flight 4464; Tr. 148 for 

Flight 6756; Tr. 153 for Flight 6991; Tr. 96 for Flight 6960; Tr. 117-119 for Flight 6756; Tr. 48-50 for Flight 4553; Tr. 55-

56 for Flight 4540; Tr. 62 for Flight 4445; Tr. 67for Flight 4613; Tr. 170-71 for Flight 4781; Tr. 120-122 for Flight 1160; 

Tr. 106 for Flight 5449. 

2 
standard bags and 24 planeside bags loaded onto the aircraft. (Ex. C-3). However, AS! Wallentine, who 

was performing routine surveillance at Colorado Springs airport, testified that she observed 35 standard 

bags and 24 planeside bags unloaded from the aircraft upon its arrival. (Tr. 116-17). Respondent's 

operations specifications require that its aircraft be loaded according to Respondent's Weight and Balance 

Manual, which includes the proper completion ofthe CLR. (See FAA-2012-0869 Compl. ~~ II.3 & 4, 

Answer n Il.3 & 4). Thus, as the ALI concluded, by failing to accurately list the amount and type of 

baggage on the CLR, Respondent loaded and operated the aircraft contrary to its operations specifications 

in violation of 14 C.P.R. §§ 119.5(g) & (1). (See Decision for F AA-20 12- 0869 at 23-24)3 

Respondent's Weight and Balance manual also dictates that the PIC prepares the load manifest 

using information from the CLR. (Ex. R-1-1, Page 4-17, n 12.B.l and 12.C.l.).4 The load manifest is the 

document that is required to correctly reflect the aircraft's loaded weight; it includes fuel, passengers, 

baggage, and cargo for each flight. (Ex. R-1-1, Page 4-17, ~~ 12.B.1 and 12.C.1.). By regulation, the load 

manifest must contain, among other things, the weight of the cargo and baggage at the time of takeoff. 

14 C.F.R. § 121.693(a). To calculate this weight, Respondent's Weight and Balance Manual defines each 

type of cargo and assigns an average weight to each category. (Ex.R-1-1, Page 3-9). Under this average 

weights program, a "standard checked bag" is defined as a bag weighing 50 pounds or less; Respondent's 

manual assigns a standard checked bag a weight of30 pounds each. (See, e.g., FAA-2012-0869 Compl. 

~ II.5, Answer~ II.5; Ex. R-1-1, Page 3-9; Tr. 378). A "Planeside Valet Bag," "Planeside Loaded Bag," 

and "Service Item" is also assigned a weight of30 pounds each. (See, e.g., FAA-2012-0869 Compl. 

~~ 1!.6-8, Answer~~ !1.6-8; Ex R-1-1, Page 3-9; Tr. 378 -379). A "heavy checked bag" is a bag weighing 

more than 50 pounds, but less than I 00 pounds; it is assigned an average weight of 60 pounds. (See, e.g., 

FAA-20 12-0872 Compl. ~ II.I 0, Answer~ 11.1 0; Ex. R-1-I, Page 3.9; Tr. 378). Live animals checked as 

3 Despite the consolidation ofthese cases for hearing, the ALI issued eight separate initial decisions for these cases. While 

the ALJ' s recitation of the facts and witness testimony is distinct in each decision, his conclusions of law and rationale for 

his findings of violations, or lack thereof, are verbatim. Therefore, only one of his decisions will be cited as a representative 

source when the proposition applies across all eight decisions. 

4 The PIC receives one copy; the departure station retains the other (the "station copy"). (Ex. R-1- I, Page 4-8). 

3 
baggage are assigned a weight of 30 pounds each, or 60 pounds each for those meeting heavy baggage 

criteria. (See, e.g.,. FAA-2012-0874 Compl. ~II. I 5, Answer~ II. 15; Ex. R-1-1, Page 4-3). 

Andrew Ayers, a Principle Operations Inspector for the FAA who was received by the ALJ as an 

expert in weight and balance (Tr. I 81-82; 184 ), testified that if a CLR does not correctly reflect the cargo 

that is actually loaded onto the aircraft, the weight calculated from this data will be inaccurate. (See 

Tr. 200). Correspondingly, a cargo and baggage weight listed on a load manifest prepared using such a 

CLR would also be incorrect. ld. To continue the previous illustration, the CLR for Flight 1160 stated that 

23 standard bags were loaded onto the aircraft. (Ex. C-3). Thirty-five bags were actually loaded. (Tr. 116-

17). Mr. Ayers testified that the cargo weight listed on the load manifest for this flight corresponded to the 

baggage data listed on the CLR (e.g., assigning each of the bags listed on the CLR the 30-pound weight 

required by Respondent's Weight and Balance Manual yielded the weight listed on the load manifest). 

(Tr. 199). Thus, the load manifest for Flight 1160 listing a cargo weight of1410 pounds (Ex. C-4) was 

incorrect. (Tr. 200), because it failed to account for the additional 12 standard bags loaded on to the 

aircraft. This is the case for each of Respondent's 14 flights 5 

To counter this evidence, Respondent presented the deposition testimony of Carl Salamone, who 

the ALJ accepted as an expert in the field of calculation of aircraft weight and balance, who opined that 

none of the flights exceeded the manufacturer's maximum for takeoff weight, center of gravity, runway 

performance, climb performance, or maximum operating altitude. (Tr. 241-45). Specifically pertaining to 

Flight 1160, he testified that the 12 bags not accounted for on the CLR would have resulted in an additional 

360 pounds of cargo. (Tr. 262). This would have had a "negligible" impact on the aircraft's operation; the 

aircraft was still below the maximum takeoff weight and the additional baggage moved the center of 

gravity for this flight by approximately one percent. (Tr. 263). Therefore, he concluded that there was no 

safety impact. (Tr. 263-64). 

5 In his testimony, Mr. Ayers compares the weight listed on the load manifest for each flight with the weight that would 

have been calculated from the data on the CLR using the method required by Respondent's Weight and Balance Manual. 

He concludes that the load manifest for each flight was derived from incorrect data. (See Tr. 198- 207). 

4 
In his eight decisions, the ALI collectively summarized each witness' testimony and found "the 

testimony of all witnesses to have been truthful and credible,'' (See, e.g., Decision for F AA-20 12-0869 at 

21). For 13 of the total14 flights, he found Respondent's failure to accurately prepare a CLR constituted a 

violation of 14 C.F.R. §§ 119.5(g) & (1). 6 The ALI declined, however, to fmd a violation of these 

subsections for Flight 4540 as alleged in Case No. F AA-2012-0874, because he found that due to a 

typographical error in the Complaint "the evidence and testimony did not conform to the pleadings." 

(Decision for F AA-2012-0874 at 43-44). The ALJ also concluded that Complainant failed to make a prima 

facie case of violation of 14 C.F.R. §§ 121.693(a), (c), & (d) for each of the 14 flights. (See, e.g., Decision 

for F AA-2012-0874 at 24). Specifically, he determined that "a carrier's load manifest will pass muster if it 

has been compiled using approved procedures, and [] the method used insures that the center of gravity is 

within limits." !d. As applied to Respondent's cargo and baggage loading in each of the 14 flights, the ALJ 

found that the "evidence shows that [Respondent] followed these mandates." ld. at 24-25. Accordingly, he 

declined to find a violation of the load manifest provisions as pled in the Complaints. !d. 

In assessing a civil penalty for Respondent's 13 violations of 14 C.F.R. §§ 119.5(g) & (1), the ALI 

concluded that Respondent's failure to prepare an accurate CLR was "technical in nature." Id. at 27. Thus, 

only a "minimal amount of $250 per violation" was warranted. Id. at 28. The ALJ declined to assess a 

separate civil penalty for Respondent's violation of each subsection of 119.5; instead, he determined that 

the distinction between 119.5(g) and (I) is "inconsequential" and "just one civil penalty per flight is 

appropriate." Id. at 27. On these grounds, the ALJ assessed a total penalty of$250 for each of the 13 flights 

for which he found a violation of subsections 119.5(g) & (1). 

6 The ALJ found a violation of 14 C.F.R. §§ 119.5(g) & (I) as alleged for the flights pled in Case Nos. FAA-2012-0868; 

F AA-2012-0869; FAA-2012-0872; F AA-2012-0873; FAA-2012-0904; FAA-2013-0617; F AA-2013-0619; and flight 

numbers 4553, 4445, and 4613 in Case No. F AA-2012-0874. 

5 
Ill. STATEMENT OF THE ISSUES 

A. Whether the ALJ Erred By Failing to Find A Violation of 14 C.F.R. 

§§ 119.5(g) & (!)for Flight 4540 As Alleged in FDMS No. FAA-2012-0874. 

B. Whether the ALJ Erred by Failing to Find a Violation of 14 C.F .R. 

§ 12!.693(a), (c). & (d). 

C. Whether the ALJ's Imposition of a $250 Sanction Per Each of Respondents' 

13 Flights is Contrary to Law, Precedent, and Policy. 

IV. STANDARD OF REVIEW 

Under the Rules of Practice, the Administrator considers on appeal whether the ALJ's findings of 

fact are supported by a preponderance of reliable, probative, and substantial evidence. 14 C.F .R. 

§ 13.233(b)(I). The Administrator also considers whether the ALJ's conclusions oflaw are in accordance 

with applicable law, precedent, and public policy. 14 C.F.R. §13.233(b)(2). Finally, the Administrator 

considers whether the ALJ committed prejudicial errors during the hearing or proceedings. 14 C.F .R. 

§ 13.233(b)(3). Complainant bears the burden of proving the appropriateness of the civil penalty, but 

Respondent bears the burden of proof of an affirmative defense, such as corrective action. See 14 C.F.R. 

§ 13.224(a); In the Matter of Seven's Paint & Wallpaper Co., FAA Order No. 2001-6 (May 15, 2001). 

V. ARGUMENT 

A. The ALJ Erred By Failing to Find A Violation of 14 C.F.R. §§ 119.5(g) & (!)for Flight 4540 As 

Alleged in FDMS No. FAA-2012-0874. 

In his eight decisions addressing the allegations contained in the consolidated Complaints, the ALJ 

collectively found that Respondent violated 14 C.F.R. §§ 119.5(g) & (l) by failing to accurately prepare a 

CLR in accordance with the requirements of Respondent's Weight and Balance Manual (SP 4100), as 

incorporated into its OpSpecs, for all but one of the 14 flights alleged in the Complaints. (See, e.g., 

Decision for FAA-2012-0868 at 27; Decision for FAA-2012-0874 at 34). For this one flight- Flight 4540 

alleged in FAA-20 12-0874- the ALJ declined to find a violation? His stated rationale for this decision is 

7 Complainant does not appeal the ALI's fmdings as they pertain to Case Nos. F AA-2012-0868; FAA-2012-0869; 

FAA-2012-0872; F AA-2012-0873; FAA-2012-0904; F AA-2013-0617; FAA-2013-0619; and flight numbers 4553,4445, 

and 4613 in Case No. FAA-2012-0874. Complainant does appeal the ALI's failure to find a violation of 119.5(g) & (l) 

with respect to Flight 4540 in Case No. F AA-2012-0874). 

6 
grounded in a trivial pleading error. (See Decision for FAA-2012-0874 at 43-44). Specifically, the 

Complaint for Case No. F AA-20 12-0874 pleads, in pertinent part: 

29. On March 3, 2011, at Missoula International Airport (MSO), Missoula, 

Montana, SkyWest loaded passengers and baggage on to N465SW, to be 

operated as Flight 4540 bound for SLC. 

30. SkyWest's personnel at MSO loaded 250 pounds of ballast and 100 pounds 

of COMA T onboard N465SW. 

31. The CLR for Flight 4540 listed 350 pounds ofCOMAT onboard N614SK. 

32. Sky West thereafter operated N465SW as Flight 4540 to SLC. 

(FAA-2012-0874 Campi. Section V. ~29-32). As illustrated above, paragraph 31 of the Complaint 

inadvertently identifies the aircraft operated on Flight 4540 as "N614SK" instead of"N465SW." The 

aircraft is correctly identified in the remaining paragraphs 29, 30, and 31. 

At the hearing, Complainant introduced evidence pertaining to N465SW. Specifically, Complainant 

introduced the CLR for Flight 4540, which listed the aircraft as N465SW and indicated a COMA T weight 

of350 pounds. (Ex. C-21). Complainant also introduced the testimony of Aviation Safety Inspector (AS!) 

Perkins, who testified there was a discrepancy between the actual cargo unloaded from the aircraft and the 

cargo reported on the CLR; he observed the aircraft upon arrival in SLC and testified that it actually 

contained 250 pounds of ballast and 100 pounds ofCOMAT. (Tr. 56). ASI Perkins also testified that he 

photographed the ballast and CO MAT carried by aircraft N465SW upon its arrival at SLC. (Ex. C-23; 

Tr. 60). Respondent's OpSpecs require that aircraft loading be accomplished in accordance with 

Sky West's Weight and Balance Manual, SP 4100. (See, e.g, F AA-2013-0617 Campi.~ 3 & Answer~ 3). 

The relevant portions of this manual require the designated loading agent to record the actual weight for 

baggage and cargo, including COMAT and ballast, on the CLR. (Ex. R-1, SP4100 at 3-6). Accordingly, as 

found by the AU with respect to the other 13 flights, Respondent's OpSpecs obligate the carrier to prepare 

a CLR for each flight that accurately reflects the weight of each category of cargo. (See, e.g., Decision for 

FAA-2012-0874 at 40-41). Thus, Respondent's failure to properly reflect on the CLR the actual weight of 

7 
the ballast and CO MAT loaded onto N465SW, and the subsequent operation ofN465SW as Flight 4540, 

constitutes violations of sections 119.5(g) & (1). 

Yet, in light of the above-referenced typographical error in the Complaint, the ALJ held that "the 

evidence and testimony did not conform to the pleadings." (Decision for FAA-2012-0874 at 43-44). 

Essentially, he held that because paragraph 31 of the Complaint inadvertently identified the wrong aircraft, 

he could not find a violation of 14 C.P.R. §§ 1!9.5(g) and (I) for Flight 4540. (Decision for FAA-2012-

0874 at 43-44). This conclusion is in error. The Rules of Practice in FAA Civil Penalty Actions require 

only that facts and regulations be plead "in sufficient detail to provide notice of any factual or legal 

allegation." 14 C.F.R. § 13.208. Similarly, section 554(b)(3) of the Administrative Procedure Act provides 

that "[p ]ersons entitled to notice of an agency hearing shall be timely informed of ... the matters of fact 

and law asserted. 5 U.S.C. § 554(b)(3). 'The principal purpose of the [FAA's] complaint is to put a 

respondent on notice of the charges against him." Administrator v. Cable, 2 NTSB 1967, 1968 (1995). See 

also L.G. Balfour Company v. FTC, 442 F.2d l, 19 (7th Cir 1971) ('The purpose of the Administrative 

complaint is to give the responding party notice of the charges against him."). As such, the allegations in 

an administrative complaint "need not be technically precise as long as it generally informs the party 

charged of the nature of the alleged violation." George C. Foss Co. v. NLRB, 752 F.2d 1407, 1411 (9'h Cir. 

1985). The ultimate question, therefore, is not simply whether the pleading was adequate as a formal 

matter, but rather whether the procedure afforded the Respondent was fair. Aloha Airlines, Inc., v. CAB, 

59 F.2d 250, 262 (D.C. Cir. 1978). Here, the procedure was. 

Respondent never claimed that the Complaint failed to give it appropriate notice of the facts or 

regulations that would be raised at the hearing. Given that three out of the four relevant paragraphs in the 

Complaint identified the correct aircraft, there was no reasonable ambiguity as to what flight or what 

aircraft was at issue. Moreover, each of the exhibits offered at the hearing as evidence of these allegations 

pertained to N465SW. (See Ex. C-21, C-22, C-23). These exhibits, identifYing the correct aircraft number, 

were tendered to Respondent during discovery well before the hearing. Respondent did not object to the 

introduction of these exhibits at the hearing, nor to the testimony of AS! Perkins regarding his inspection 

8 
and observation of aircraft N465SW. (Tr. 55-58). In fact, in its Answer to the Complaint, Respondent 

admitted the allegations contained in paragraph 31. (FAA-2012-0874 Answer Section V. ,;31). 

Accordingly, this factual allegation was not even in dispute before the ALJ. See 14 C.F.R. § 13.209 (an 

allegation contained in the complaint that is not specifically denied in the answer may be deemed an 

admission of the truth of that allegation). 

A similar issue arose in In the Matter of Pinnacle Airlines, FAA Order No. 2012-2 (May 22, 2012). 

In that case, Complainant incorrectly referenced 49 U.S.C. § 4630l(a)(5) as the grounds for its statutory 

authority for civil penalties, rather than citing the correct section 46301 (a)(!) in its Complaint. On appeal, 

Pinnacle argued that the ALJ erred in assessing a civil penalty under a statute that Complainant did not 

assert in the complaint. See id. at 9. The Administrator, however, held that the failure by Complainant and 

the ALJ to cite the correct statutory provision as the authority for assessing a civil penalty was harmless 

error, because the Complaint, although it contained a typographical error, provided Pinnacle with sufficient 

notice it was subject to a civil penalty. See id. at 10. Such is the case here. Admittedly, Complainant 

misidentified one aircraft in one paragraph of the Complaint; however, such a technical error did not impact 

Respondent's notice of the charges against him in any way, and should not be a basis for dismissal of the 

allegations. See Mkt. St. Ry. Co. v. R.R. Comm'n of State of Cal., 324 U.S. 548, 562 (1945) ("[D]ue 

process deals with matters of substance and is not to be trivialized by formal objections that have no 

substantial bearing on the ultimate rights of parties."). In light of the evidence presented at hearing, which 

demonstrates that Respondent loaded N465SW using an inaccurate CLR and operated subsequently 

operated N465SW as Flight 4540, the Administrator should find that Respondent violated 14 C.F.R. 

§§ 119.5(g) & (I) by failing to comply with its Weight and Balance Manual. A civil penalty should thereby 

be assessed for these violations accordingly, as further discussed below. 

9 
B. The ALJ Erred By Failing to Find a Violation of 14 C.F.R. § l2l.693(a),(c), &(d). 

Section 12!.693 provides, in relevant part: 

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. 

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

schedule that insures that the center of gravity is within 

approved limits. 

1. Respondent Violated 14 C.P.R.§ 12l.693(a) by Failing to Reflect an Accurate Weight for 

Cargo and Baggage on the Load Manifest for 13 Flights8 

The Federal Aviation Regulations (FARs) require that the weight of cargo and baggage be listed on 

the load manifest at takeoff. 14 C.F.R. § l2l.693(a). The FARs further provide that "[e]ach certificate 

holder is responsible for the preparation and accuracy of a load manifest form before each takeoff." 

I 4 C.P.R. § 121.665 (emphasis added). Reading these two provisions harmoniously, as traditional cannons 

of construction dictate,9 shows that to in order to comply with the requirements of section 121.693(a), the 

weight listed on the load manifest must be accurate. This interpretation has been upheld by both the 

Administrator and the National Transportation Safety Board (NTSB) in the context ofthe comparable 

provision in Part 135, which similarly requires "the total weight of the loaded aircraft" to be listed on the 

load manifest. See 14 C.F.R. 135.63(c). Specifically, the Administrator held in Tn the Matter of Polynesian 

Airways, FAA Order No. 94-40, at II (Dec. 9, 1994), that Polynesia Airways' use of an inaccurate aircraft 

weight to calculate the total weight of the loaded aircraft gave rise to a violation of section 135.63(c), 

because a Part 135 operator is "responsible for the accuracy of the load manifest." ld. at II (emphasis in 

8 Complainant appeals this fmding as it pertains to Case Nos. FAA-2012-0868; FAA-2012-0869; F AA-2012-0872; FAA2012-0873; F AA-20 12-0904; FAA-20 13-0617; F AA-2013-0619; and flight numbers 4553, 4445, and 4613 in Case No. 

FAA-20 12-0874. Complainant does not appeal this finding as it pertains to Flight 4540 in FAA-2012-0874 because the 

weight listed on the load manifest for that flight was correct. 

9 It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a 

view to their place in the overall statutory scheme." Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). A 

court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," Gustafson v. Alloyd Co., 513 

U.S. 561, 569 (1995), and "fit, if possible, all parts into an harmonious whole," FTC v. Mandel Brothers, Inc., 359 U.S. 

385, 389 (1959). See Food & Drug Admin. v. Brown & Williamson Tobacco Com., 529 U.S. 120 (2000). 

10 
original). The Administrator further noted that if the empty weight of the aircraft is incorrect, then "all of 

the calculations based thereon, such as the weight and balance for a loaded aircraft, likewise will be 

wrong."~ The NTSB has taken a similar position, finding that when inaccurate data is used to calculate 

the weight listed on the load manifest, the load manifest is incorrect and a violation 121.693(a), or the 

comparable provision in 135.63( c), may be found. See Administrator v. Rogers, NTSB Order No. EA4428, 1995 WL 624468, at* I fn. 4 (Mar. 5 1996) (errors in load manifest gave rise to violation of 

135.63(c); specifically, crews weight should have been recorded as 508 pounds, not 330, and actual cargo 

weight was approximately 520 pounds, not 330 as listed in load manifest); Administrator v. Angstadt, 

NTSB Order No. EA-5421, 2008 WL 5373647, at *1,7 (Dec. 17, 2008) (ALJ did not err by finding a 

violation of 121.693(a) when load manifest incorrectly indicated 33 adults and one child, but there were 34 

adults and no children on the aircraft). 

Here, the evidence presented at the hearing demonstrates that Respondent used inaccurate CLR data 

to calculate the weight of the cargo and baggage, and, thus, Respondent violated section 121.693(a) by 

failing to reflect the accurate weight for cargo and baggage on the load manifest for 13 tlights. 10 11 

Respondent's manual provides that the pilot in command (PIC) prepares the load manifest using the 

information listed on the "Cargo Load Report" (CLR). (Ex. R-1-1, Page 4-17; Tr. 185). The CLR is the 

"primary document used to communicate weight and balance information ... to the PIC." (Ex. R-1-1, Page 

3-8). Accordingly, if the CLR is incorrect, so is the load manifest. For each of the 14 flights alleged in the 

Complaint, an ASI testified that the baggage and cargo unloaded from the aircraft did not match the cargo 

1

° For Flight 4540, an AS! testified that the aircraft was loaded with 250 pounds of ballast and 100 pounds of company 

material, a total of350 pounds. (Tr. 55). The CLR obtained by the AS! ftom the flight crew showed no ballast on board and 

350 pounds of CO MAT, a total of350 pounds. (Ex. C-23). In this instance, the Respondent happened upon the correct 

actual weight for the cargo and baggage, though it fortuitously did so given its failure to follow its own procedures. 

Therefore. Complainant does not appeal the ALJ's failure to fmd a violation of 14 C.F.R.§ 121.693(a) as it pertains to 

Flight 4550 in Flight F AA-3023-0087 because the weight listed on the load manifest was technically accurate. As 

discussed further below. this conduct still gives rise of a violation of 14 C.F.R.§ 121.693( c) &(d) because Respondent 

failed to compute the weight of the cargo using approved procedures, and failed to the load the aircraft in accordance with 

the approved schedules in its Weight and Balance Manual. 

11 See Tr. 41-43 for Flight 5840; Tr. 116-17 for Flight 1160; Tr. 23-24 for Flight 4464; Tr. 148 for Flight 6756; Tr, 153 for 

Flight 6991; Tr. 96 for Flight 6960; Tr. 117-119 for Flight 6756; Tr. 48-50 for Flight 4553; Tr. 55-56 for Flight 4540; Tr. 

62 for Flight 4445; Tr. 67for Flight 4613; Tr. I 70-71 for Flight 4781; Tr. 120-122 for Flight 1160; Tr. 106 for Flight 5449. 

11 
and baggage listed on the CLR. 12 As the Administrator noted in Polynesian Airways, when the underlying 

data used to calculate weight is incorrect, the load manifest weight will be incorrect as well. (But for, a 

fortuitous circumstance of the kind described in footnote I 0). See FAA Order No. 94-40, at 11-12. Andrew 

Ayers, a Principle Operations Inspector for the FAA and an expert in weight and balance (Tr. 181-82; 184), 

testified to this effect. He explained that he is familiar with Respondent's operational procedures (Tr. 184), 

and when the information on the CLR does not match the actual cargo loaded on the aircraft, the load 

manifest will also be inaccurate. (Tr. 200). This is a particularly critical safety issue, given that if an 

aircraft is actually heavier than it purports to be, all of the performance numbers derived for a particular 

flight are invalidated. (Tr. !89). 

To demonstrate the inaccuracy of each load manifest, Mr. Ayers calculated a total cargo load 

weight fi·om the CLR for each flight using the average weights assigned by Respondent's Weight and 

Balance Manual; he then compared this calculated weight to the weight listed on the load manifest to 

determine whether the load manifest for each mirrored the incorrect CLR for that flight. (See Tr. 185, 192-

207). By way of illustration, the CLR for Flight 1160 (F AA-2012-0869) listed 23 standard bags and 24 

Planeside Valet bags. (Ex. C-3)Y Respondent's weight and balance manual assigns these types of bags an 

average weight of30 pounds each. (See, e.g., FAA-2012-0869 Compl. ~ 11.5-8, Answer~ II.5-8; Ex. R-1-1, 

Page 3-9; Tr. 378-79). Assigning a 30-pound weight to each of the 47 bags listed on the CLR yields a total 

weight of 1410 pounds. The load manifest for Flight 1160 lists a total cargo weight of 1410 pounds, 

mirroring the CLR. (Ex. C-4). Thus, the weight as calculated using the incorrect CLR data matches the 

cargo weight listed on the manifest. (Tr. 199). This weight, however, is incorrect. ASI Wallentine observed 

35 standard bags- rather than the 23 listed on the CLR- unloaded from the aircraft upon its arrival in 

SLC. (Tr. 116). Because the CLR did not reflect the accurate cargo loaded onto the aircraft, the cargo and 

baggage weight listed on the load manifest for Flight 1160, as derived from the inaccurate CLR, is also 

12 See Fn. 11. 

13 AS! Wallentine, who was performing routine surveillance in Colorado Springs airport, testified that she observed 35 

standard bags and 24 p1aneside bags unloaded from the aircraft upon its arrival. (Tr. 116-17). 

12 
incorrect. This analysis holds for 12 of Respondent's flights- specifically, the flights alleged in Case Nos. 

FAA-2012-0868; FAA-2012-0869; FAA-2012-0872; FAA-2012-0873; FAA-2012-0904; FAA-2013-0619; 

and flight numbers 4553, 4445, and 4613 in Case No. FAA-2012-0874. (See Tr. I 92-207). 14 An inaccurate 

weight on a load manifest is contrary to the requirements of 14 C.P.R.§ 121 .693(a); thus, the ALJ erred by 

failing to find a violation of this subsection in connection with the 12 flights enumerated above. 

For Flight 1160 (FAA-2013-0617), the cargo weight listed on the load manifest does not mirror the 

inaccurate CLR data. However, this load manifest data is also incorrect. The CLR for this flight indicates a 

load of 36 standard bags, 17 planeside bags, and 308 pounds of COMA T. (Ex. C-32). ASI Wallentine 

testified, however, that instead of 36 standard bags, she counted 43 standard bags unloaded from the 

aircraft. (Tr. 121-22). Assigning the 43 standard bags and 17 planeside bags the 30-pound average weight 

required by Respondent's Weight and Balance Manual, and accounting for the 308 pounds ofCOMAT, 

yields a total cargo weight of 2108 pounds. However, the load manifest for Flight 1160 incorrectly 

indicates a cargo weight of2408 pounds. (Ex. C-33). Therefore, the cargo weight listed on the load 

manifest does not reflect the accurate weight of the cargo actually loaded onto (and unloaded from) the 

aircraft; thus, this is a violation of 14 C.F.R.§ 121.693(a). 

The AU declined to find a violation for these 13 flights, however, because he credited 

Mr. Salamone's testimony that "none of the flights exceeded maximum takeoff weight." (See. e.g .. 

Decision for F AA-20 12-0868 at 28). While this may be correct, a finding that a flight exceeded a 

manufacture's maximum weight is not required in order to find a violation of 14 C.F.R.§ 121.693(a). The 

regulation simply requires the weight listed on the load manifest to be accurate; in each of these cases, the 

weight was not. The ALJ also determined that the "crews' calculations were accurate as pertaining to the 

cargo and weight they believed they had." I d. (emphasis added). Whether or not the crew believed the load 

manifest to be correct, however, is inconsequential. The regulation does not import a knowledge 

requirement; it simply requires the cargo and baggage weight to be accurate. See 14 C.P.R.§ 121.665. 

14 In the interest of brevity, a chart providing citations to the evidence supporting a finding of violation in connection with 

each of the 13 flights addressed in this section is attached as Appendix B to this brief. This Appendix was submitted as a 

part of Complainant's Post-Trial Brief and is therefore part of the administrative record. 

13 
When the total cargo weight listed on the load manifest is incorrect, such as it was here, a preponderance of 

the evidence sustains a violation of 14 C.F.R.§ 121.693(a). 

Respondent attempts to circumvent this accuracy requirement by suggesting that the use of its 

standard average baggage weight program (whereby each category of bag is assigned a uniform, 

standardized weight)15 dispenses with the need to accurately account for the total weight of cargo loaded on 

to the aircraft. (See Tr. 381-82; Respt's Post Hearing Reply Brief at 11-12).16 Complainant concedes that 

computing total cargo weight using the standard average weights method will not typically yield the exact 

weight of the cargo. See Advisory Circular 120-27E at 15 ("differences between the actual weight of 

passengers and bags and the average weight of passengers and bags can occur when using average 

weights."). But properly accounting for each type of bag, and applying the standard weight assigned for 

each type of bag, will yield an accurate weight relative to the actual loading of the aircraft. Only an 

accurate weight is required by section 121.693(a). Accord Advisory Circular 120-27E at ii ("Accurately 

calculating an aircraft's weight and CG before flight is essential to comply with the certification limits 

established for the aircraft."). Respondent's use of a standard average weights program does not absolve it 

of its obligation to properly account for and accurately compute the weight of its cargo. Thus, the ALJ 

erred by failing to find a violation of 14 C.F.R. § 121.693(a) for these 13 flights, and Complainant requests 

that the ALJ's dismissal ofthese violations be reversed. An additional sanction is not requested for these 

violations, however, as they are based on the same factual conduct underlying the violations of section 

119.5(g). 

15 As provided in Respondent's Weight and Balance Manual and as detailed in Advisory Circular 120-27E (June 10, 2005). 

16 Indeed, Respondent argued in its post-hearing reply brief that Advisory Circular 120-27E permits a 2% margin of error 

when using an average weight program. (Respt' s Post-Hearing Brief at 11 ). The figure "two percent" ("2%") appears in 

AC 120-27E in three places. In each location, the figure appears in the context of conducting weight surveys to derive nonstandard average weights for use in its weight and balance program. It does not, as Respondent characterizes, allow for a 

2% margin of weight calculation error per flight. See, e.g., Advisory Circular 120-27E at 33. 

14 
2. Respondent Violated 14 C.F.R. § 121.693(c) and (d) by Failing to Compute the Total 

Weight and Load the Aircraft in Accordance with its Weight and Balance Manual. 

Respondent may only operate a flight when the total weight of the aircraft has been computed using 

approved procedures. 14 C.F.R. § 121.693(c). The aircraft must also be loaded according to an approved 

schedule. 14 C.F.R. § 121.693(d). It is undisputed that Paragraph A098 of Respondent's OpSpecs requires 

that aircraft loading be accomplished in accordance with the approved procedures in its Weight and 

Balance Operations Manual (SP41 00). (See. e.g., FAA-2012-0873 Compl. ~ II.3, Answer~ 11.3). This 

manual also contains the approved loading schedules and instructions for the loading of Respondent's 

aircraft. (See, e.g., FAA-2012-0873 Compl. ~ 11.4, Answer~ 11.4; Ex. R-1-1). Respondent's manual 

specifically provides that the "PIC is responsible for the loading of the aircraft in accordance with the 

policies and procedures contained in this manual." (Ex. R-1-1 at Page 3-2). Accordingly, to comply with 

the regulatory requirements of sections 121.693( c) and (d), Respondent must compute the weight of the 

loaded cargo and load the aircraft in accordance with its Weight and Balance Manual. 

This did not occur for the 14 flights collectively pled in these cases. It is undisputed that 

Respondent operated each flight and loaded cargo and baggage on to each of the 14 flights under review. 

(See, e.g., FAA-2012-0869 Complaint n lll.ll, 15, Answer~~ lll.ll, 15; Tr. 454)_1' Respondent's Weight 

and Balance Manual requires the total count of each type of baggage and other cargo, including standard 

bags, heavy bags, planeside items, ballast, company material, and live animals, to be delineated on the 

Cargo Load Report (CLR). (See Ex. R-1-1, and Page 3-2 to 3-6, Page 4-10; see, e.g., FAA-2012-0869 

Com pl. ~ II.9, Answer~ li.9). Yet, testimony and evidence presented at the hearing demonstrated that for 

each of the 14 flights the CLR did not accurately state the actual count of standard bags, heavy bags, 

ballast, company material, and/or live animals loaded onto the aircraft18 Because this CLR was inaccurate, 

total weight listed on the CLR was not computed using approved procedures. 19 

17 Respondent had operational control over the flights. (See. e.g., Tr. 447). 

18 See Appendix A. See also Tr. 41-43 for Flight 5840; Tr. 116-17 for Flight 1160; Tr. 23-24 for Flight 4464; Tr. 148 for 

Flight 6756; Tr, 153 for Flight 6991; Tr. 96 for Flight 6960; Tr. 117-119 for Flight 6756; Tr, 48-50 for Flight 4553; Tr. 55-

56 for Flight 4540; Tr. 62 for Flight 4445; Tr. 67 for Flight 4613; Tr. 170-71 for Flight 4781; Tr. 120-122 for Flight 1160; 

Tr. 106 for Flight 5449. 

15 
Moreover, given the inaccuracy ofthe CLR, Respondent could not have known the breakdown of 

baggage and cargo- i.e., the count of standard checked bags, heavy checked bags, planeside bags, ballast, 

live animals, and other cargo- that was actually loaded onto each aircraft for each flight. Thus, 

Respondent could not have known at the time its operation for each flight, whether the aircraft was loaded 

according to its approved schedule, i.e., the limitations contained in its Weight and Balance Manual. See 

Advisory Circular l20-27E at 5 ('The loading schedule is used to document compliance with the 

certificated weight and balance limitations contained in the weight and balance manual.... [i]t provides the 

operational limits for use with the operator's weight and balance program."). As explained by Mr. Ayers, 

because the CLR was inaccurate, Respondent could not have insured that the center of gravity was within 

approved limits at the time of operation of each flight. (See Tr. 208-209). 

Complainant concedes that Respondent's witness, Mr. Salamone, testified that the aircraft weight 

and center of gravity location fell within manufacturer recommendations and performance envelopes for 

every flight under review. (See, e.g., Decision for FAA-2012-0868 at 28). But this is not the relevant 

inquiry. Rather, as explained by Mr. Ayers, part of Respondent's approved program describes procedures 

for the proper completion of the CLR. (Tr. 208). The failure to follow these approved procedures is still a 

violation, even if by happenstance Respondent arrives at the correct weight, or fortuitously stays within the 

manufacturer's recommendations and performance envelopes for each flight. (Tr. 208)?0 Given the 

inaccuracy of the CLR, Respondent could not have known at the time whether each aircraft was operating 

within its appropriate weight and balance envelope. (Tr. 209). It is insufficient for Respondent to declare 

now, post hoc, that its failure to follow its own procedures was de minimis. Respondent must rely on its 

approved procedures, not serendipity. Accordingly, the relevant question is whether Respondent's 

19 As explained by Mr. Ayers, the failure of Respondent to accurately prepare the CLR in accordance with its manual, and 

Respondent's subsequent use of this CLR to prepare the weight listed on the load manifest for each flight, evidences that 

Respondent did not comply with its approved procedures. (See Tr. 207-208). 

2

° For example, for Flight 4540 the load manifest weight matched the inaccurately prepared cargo load report, but 

fortuitously, the load manifest reflected the correct cargo weight. This is still a violation of§ 121.693(c) and (d), because 

Respondent failed to use correct the procedures to ascertain that information. (See Tr. 207-208). As explained by Mr. 

Ayers, "it is not enough to get the right answer. .. the work also has to be correct." !d. at 208. 

16 
approved procedures and approved loading schedule- i.e., the requirements contained its Weight and 

Balance Manual- were actually followed for these flights. (Tr. 208). The evidence demonstrates that they 

were not; thus, Respondent violated 14 C.F .R. § 121.693( c) and (d) by this conduct. 

Respondent suggests last-minute changes to the aircraft loading were the cause of the variance 

between the CLR and the actual baggage loaded onto the aircraft. But this is of no consequence here; as 

Respondent's own exhibits make clear, Respondent's manual requires any changes to aircraft loading be 

reflected on both copies of the CLR and on the load manifest. (Tr. 219-220, 291-92, 413-16; Ex. R-1-1 

Page 4-8, ~ 7.B.l.g, Page 4-9, ~ 7.F; Ex. R-2-1, Page 6, ~ 4.X.2.c; Exhibit R-8, Procedure~ 2.d). Even 

Respondent's expert witness agreed that, when a "late arriving" bag is placed on the aircraft, both copies of 

the CLR and the load manifest must be revised. (Tr. 291-292). Accordingly, any purported changes should 

have been reflected on the CLR and on the load manifest pursuant to Respondent's Weight and Balance 

Manual. As before, because Respondent failed to load the aircraft in accordance with its manual, it has 

failed to comply with its approved procedures and schedules, as required by 14 C.F.R. § 121.693( c) & (d). 

Again, although the ALJ erred in not finding a violation of sections 121.693( c) & (d), Complainant does 

not request an additional sanction for these violations since they are based on the same conduct underlying 

the section 119.5(g) violations. 

C. The ALJ's Imposition of a $250 Sanction Per Flight is Contrary to Law, Precedent, and Policy. 

The ALJ held that by failing to accurately prepare a CLR in accordance with the requirements of 

Respondent's Weight and Balance Manual, as incorporated into its OpSpecs, Respondent violated I 4 

C.P.R. §§ 119.5(g) & (1). 21 However, in assessing a sanction for these violations, the ALI assessed only a 

single, $250 civil penalty for each of the 13 flights Respondent loaded and operated an aircraft out of 

compliance with the requirements of its OpSpecs22 The ALI's explanation for this sanction determination 

21 Complainant only appealed these fmdings as applied to the ALJ's failure to find a violation of 119.5(g) & (I) with respect 

to Flight 4540 in Case No. FAA-2012-0874. This argument is addressed in Section V.A. ofthis brief. 

22 The ALJ assessed a $250 civil penalty for 13 of the 14 flights plead in the consolidated appeal. The ALJ declined to 

assess a civil penalty for Flight No. 4540, in FDMS Case No. FAA-2012-0874. As explained in Section A of this brief, the 

ALl's failure to assess a civil penalty was in error. Therefore, the sanction argument contained in Section V.C. of this brief 

applies to all 14 flights plead in the eight consolidated cases before the ALJ. 

17 
is twofold. First, he explained that the distinction between sections 119.5(g) & (I) is "inconsequential" and, 

therefore, he declined to assess a separate civil penalty for each regulatory violation. (See, e.g, Decision 

for FAA-2012-0872 at 43). Second, the ALJ held that the "evidence and testimony did not support the 

penalty requested" by the FAA. Id. Rather, he characterized Respondent's failure to accurately account for 

the baggage loaded onto its passenger aircraft as a merely "technical" violation, and assessed what amounts 

to a nominal penalty of $250 per flight. (See, e.g., Decision for F AA-20 12-0872 at 43). Case law provides 

that when an ALJ assesses a civil penalty that is inconsistent with agency sanction policy, the 

Administrator may reverse the ALJ's decision. In the Matter of Ventura Air Servs, Inc., FAA Order No. 

2012-12 (Nov. I, 2012) (citing In the Matter of Folsom's Air Service, FAA Order 2008-11 at 14 (Nov. 6, 

2008)). Indeed, the Administrator has both the authority and duty to impose the agency's policy on appeal. 

In the Matter ofWarbelow's Air Ventures, Inc., FAA Order No. 2000-3 (Feb. 2, 2000). For the reasons 

discussed below, the ALJ's assessment of a $250 civil penalty per flight is contrary to law, precedent, and 

policy, and should be reversed. 

I, The ALJ Erred By Failing to Assess a Separate Sanction for 119.5(g) and 119.5(]). 

Despite finding that Respondent violated two distinct subsections ofthe FARs, the ALJ declined to 

assess a separate civil penalty for Respondent's violation 14 C.F.R. §§ 119.5(g) & (!). (See, e.g., Decision 

for FAA-2012-0868 at 31 ).23 Instead, he determined that 119.5(g) and 119.5(1) "are not significantly 

different" and, thus, "just one civil penalty per flight is appropriate." 1d. To the extent that the ALJ found 

that that sections 119.5(g) and 119.5(1) do not each, independently, warrant the imposition of a civil 

penalty, this finding is contrary to law and should be reversed. 

The test for multiplicity as established by the U.S. Supreme Court is "whether each provision 

requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 

23 Specifically: Case Nos. FAA-2012-0868; FAA-2012-0869; FAA-2012-0872; FAA-2012-0873; FAA-2012-0904; FAA20 13-0617; F AA-2013-0619; and flight numbers 4553, 4445, and 4613 in Case No. FAA-2012-0874. Complaint does not 

appeal these findings of violation. 

18 
304 (1932). 24 The Administrator has previously applied this multiplicity test to determine whether a 

separate violation is warranted for sanction purposes. See In the Matter ofFrostad Atelier, FAA Order. 

No. 2013-5 at 14-15 (Sept. 5, 2013) (citing Ball v. United States, 470 U.S. 856,861 (1995); In the Matter 

of Charter Airlines, Inc., FAA Order No. 95-8, 1995 WL 853906, at *11-12 (May 9, 1995).25 

Here, the plain language of the regulatory subsections dictates that a violation of 119.5(g) and 

119.5(1) require distinct findings of fact. By way of illustration, subsection 119.5(g) proscribes operating as 

a "direct air carrier ... in violation of ... appropriate operations specifications," and, thereby, encompasses 

OpSpecs violations that do not involve actual flight. 14 C.F.R. § 119.5(g). In contrast, subsection 119.5(1) 

proscribes operating "an aircraft ... in violation of ... appropriate operations specifications." 14 C.F.R. 

§ 119.5(1). The critical distinction is that subsection 119.5(g) regulates operations as a direct air carrier, 

while subsection 1 I 9.5(1) regulates operation of an aircraft. 26 Accordingly, Respondent violated § 119.5(g) 

at the point at which it failed to comply with its Weight and Balance Manual, in violation of its OpSpecs, 

when preparing the CLRs for each flight; Respondent subsequently violated subsection I I 9.5(1) when it 

operated each aircraft after loading the aircraft contrary to its Weight and Balance Manual, and thus, 

contrary to its OpSpecs. Cf. In the Matter ofUSAir, Inc., FAA Order No. 96-25 (Aug. 12, 1996) (air carrier 

violated 14 C.F.R. § 43.13(a) when it failed to perform inspection in accordance with its maintenance 

manual and subsequently violated 14 C.F.R. § 121.153(a)(2) when it operated the aircraft without that 

inspection). As this illustrates, the finding of violation of subsection 119.5(1) in this context requires a 

separate finding of fact- specifically, Respondent's operation of an aircraft on 14 separate occasions 

24 In contrast, a "residual violation is one that flows solely from a respondent's violation of another, independent regulation" 

and does not warrant the imposition of a separate sanction. In the Matter of Rushmore Helicopters, Inc., FAA Order No. 

2012-8 (Oct. 11, 2012). 

25 While FAA sanction guidance provides that the FAA will ordinarily not compound a sanction when multiple violations 

are based on a single instance of non-compliance, this does not apply when, as in Biockburger, there is distinct underlying 

factual conduct supporting each violation. See FAA Order 2150.3B at 7-10. 

26 The premise that these two violations are distinct is supported by the regulatory history of 119.5(g) and (1). Though not a 

model of clarity, the regulatory history suggests that 119.5(1) was intended to encompass operations specification 

violations by employees of direct air carriers, and uses, as an example, an actual aircraft operation (i.e., flight) which is a 

concept distinct from the conduct proscribed by 119.5(g), which includes non-operational (i.e., flight) OpSpecs violations. 

See Operating Requirements: Domestic, Flag, Supplemental, Commuter, and On-Demand Operations: Editorial and Other 

Changes, 62 Fed. Reg. 5076 (Feb. 3, 1997). In any event, this regulatory history should not be construed as limiting the 

plain language of the regulation. 

19 
(involving eight cases). A separate violation, and thus a separate sanction, is thereby warranted for each 

violation. See In the Matter of Alphin Aircraft, Inc., FAA Order No. 97-9, 1997 WL 93229, at *5 (Feb. 19, 

1997) (finding multiple violations when "there was an additional required fact for each violation the law 

judge found"). 

Accordingly, the distinction between these two provisions is not, as the ALJ characterizes, 

"inconsequential." (See, e.g .. Decision for F AA-20 12-0868 at 31 ). Indeed, construing 119.5(g) and 119.5(1) 

to encompass the same conduct would render one of these subsections superfluous. A standard principle of 

construction is to construe statutes or regulations in the context of the entire statutory scheme and avoid 

rendering statutory provisions ambiguous, extraneous, or redundant. Matter of Merchants Grain, Inc. By & 

Through Mahern, 93 F.3d 1347,1354 (7th Cir. 1996). See also Duncan v. Walker, 533 U.S.167, 174 

(2001) ("[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, 

sentence, or word shall be superfluous, void, or insignificant."); Connecticut Nat. Bank v. Germain, 503 

U.S. 249, 253 (1992) ("courts should disfavor interpretations of statutes that render language superfluous"); 

accord Hibbs v. Winn, 542 U.S. 88, 89 (2004) (the '"rule against superfluities' instructs courts to interpret a 

statute to effectuate all its provisions, so that no part is rendered superfluous ... ").27 As applied to 

Respondent's conduct in this case, subsections 119.5(g) and 119.5(1) should be construed to apply to 

distinct conduct; one applies to the failure to load the aircraft in accordance with its OpSpecs, while other 

applies to Respondent's subsequent operation of the improperly loaded aircraft. A separate violation should 

thereby be imposed for Respondent's distinct violations of 14 C.F.R. §§ 119.5(g) & (1). 

2. Under Agency Sanction Guidance, a$40,000 Civil Penalty is Warranted for Each Instance in 

Which Respondent Improperly Loaded and Subsequently Operated an Improperly Aircraft. 

Complainant has the burden of establishing by a preponderance of the evidence that the basis for its 

proposed civil penalty is appropriate. See 14 C.F.R. § 13.224(a); In the Matter of Luxemburg, FAA Order 

No. 94-18 at 6 (June 22, 1994). Complainant may demonstrate the appropriateness of a proposed civil 

penalty by introducing testimony as to the nature of the violation and through the application of agency 

27 The same rules of interpretation are applicable to botb statutes and administrative regulations. Consolidated Flower 

Shipments, Inc., v. Civil Aeronautics Bd., 205 F.2d 449, 450 (9th Cir. 1953). 

20 
sanction guidance in FAA Order 2150.38."8 Cf. In the Matter of Northwest Airlines, Inc., FAA Order No. 

90-37 at 6-9 (Nov. 7, 1990) (Complainant met its burden by introducing relevant portion of Enforcement 

Sanction Guidance Table and the corresponding testimony of a Special Agent as to security risk posed by 

the alleged violations). Application of agency sanction guidance to Respondent's regulatory violations here 

demonstrates that, given the degree of hazard posed by Respondent's conduct and Respondent's history of 

factually similar violations, a $20,000 penalty is appropriate for each instance Respondent loaded an 

aircraft contrary to its Weight and Balance Manual (in violation of 119.5(g) (as well as§ 12!.693(a), (c), 

and (d)) and, additionally, for each instance Respondent operated an improperly loaded aircraft (in 

violation of 119.5(1))."9 Specifically, a civil penalty for each case is warranted as follows: 

Penalty 

Case No. Warranted 

FAA-2012-0868 $40,000 

FAA-2012-0869 $40,000 

FAA-2012-0872 $160,000 

FAA-2012-0873 $40,000 

FAA-2012-0874 $160,000 

F AA-20 12-0904 $40,000 

FAA-2013-0617 $40,000 

FAA-2013-0619 + $40,000 

Total: $560,000 

28 By way of background, to guide FAA's assessment of civil penalties the FAA has promulgated agency sanction guidance 

which can be found in FAA Order 2150.3B, Chapter 7 and Appendix B. This sanction guidance represents the policy of the 

agency. In the Matter of Northwest Airlines Inc., FAA Order No. 90-37 at 9 (Nov. 7, 1990). Appendix 8 of this guidance 

contains a "Table of Sanctions," which provides civil penalty tables that establish a specific penalty range for a specific 

type of violation, i.e., each category of violation will specify a penalty range. Corresponding numerical values for each of 

the ranges will depend on the size and operational status of the particular violator. This guidance was applied here in the 

manner explained below. 

29 The ALJ found Respondent violated two separate regulatory violations- 119.5(g) and (I)- for each of the 13 flights for 

which he assessed a civil penalty. As explained in Section V.A of this brief, the ALJ erred by failing to find a separate 

violation of 119.5(g) and (1) for Flight 4540 in F AA-2012-0874. Therefore, a civil penalty should be assessed that 

encompasses Respondent's distinct regulatory violations- specifically, the improper loading and subsequent operation of 

14 aircraft (as alleged in eight cases). Respondent's violations of§ 121.693(a), (c), and (d), are based on the same factual 

conduct supporting the 119 .5(g) violation, and, therefore, do not warrant a distinct penalty. 

21 
By way of illustration, Figure B-l-c(3) of the Sanction Guidance Table provides that the 

"Operation contrary to [operation specifications]" that has a "potential or actual adverse effect on safe 

operation" corresponds to a "Moderate to Maximum" range penalty. (FAA Order 2150.38, App'x B, Fig. 

B-l-c(3)). (That the violations here have a potential or actual adverse impact on safety is discussed below). 

The selection of this particular figure in the Sanction Guidance Table reflects the degree of safety hazard 

presented by Respondent's conduct. (See FAA Order 2150.38, Ch.7, ~4.h(e); In the Matter ofWarbelow's 

Air Ventures, Inc., FAA Order No. 2000-3 at 16-17, 2000 WL 298578 (Feb. 2, 2000)) 3 ° For a Group I air 

carrier such as Respondent, this moderate to maximum range indicated by the table corresponds to a civil 

penalty of$8,750 to $25,000 per violation. (FAA Order 2150.38 at B-7). To determine where a civil 

penalty should fall within this numerical range, sanction guidance provides that an assessment should begin 

with an amount in the middle of this range. !d. at 7-9. This amount is then adjusted upwards or downwards 

to account for aggravating and mitigating factors. I d. In this sense, Complainant's sanction determination 

does not reflect a fixed mathematical determination, but instead reflects an assessment of the totality of the 

circwnstances surrounding the violation. See, e.g., In the Matter ofFolsom's Air Service, Inc., FAA Order 

No. 2008-1 I at 11 (Nov. 6, 2008). Applying this guidance to the case at hand provides a mid-range civil 

penalty of$17,500 per each violation. 

However, aggravation above this mid-range penalty is warranted due to Respondent's substantial 

violation history. Agency sanction policy provides that "a violation history can justify imposing a sanction 

at the higher end of the normal range or a sanction beyond the normal range," particularly when the 

previous violations are factually similar. (See FAA Order 2150.38, Ch.7, ~4.h(l)). Respondent has been 

assessed civil penalties in at least eight previous cases, involving 17 separate flights, relating to its weight 

30 In the formulation of the Enforcement Sanction Guidance Table contained in the Compliance and Enforcement Program, 

FAA Order 2150.3B, the FAA considered the nature, circumstances, extent and gravity of each general type of violation as 

well as the individual's prior violation history (in that tbe table provides recommended penalties for first-time offenders). In 

the Matter of Schultz, FAA Order No. 89-0005, 1989 WL 550061, at *4 (Nov. 9, 1989). 

22 
and balance program. (See ALJ's Order on Agency's Request for Judicial Notice (May 5, 2015)).31 The 

conduct giving rise to these violations occurred over a two-year time span- ranging from 

December 5, 2008, to September 22,2010- and is nearly factually identical to the conduct underlying the 

violations at issue here; in each of the previous cases, Respondent failed to accurately account for the 

number of heavy and standard checked bags loaded onto a passenger aircraft in the manner required by its 

OpSpecs. 1d. This evidences a pattern and practice of Respondent's failure to comply with its manual. 

Indeed, Respondent's failure to demonstrate compliance with the FARs in light of this violation 

history dictates that "a substantial and serious civil penalty" is warranted in the interest of deterrence. In the 

Matter of Pinnacle Airlines, DMS No. FAA-2009-0180, 2009 WL 4796753, at *10-12 (Dec. 11, 2009), 

affd, FAA Order No. 2012-2 (May 22, 2012). In Pinnacle, the ALJ held that Respondent's history of 

non-compliance evidenced that the company regarded non-compliance with the FARs "simply a cost of 

doing business, rather than as a duty it owes to the public and to the government that licenses it to carry 

passengers in air transportation." 2009 WL 4796753 at 10. Thus, it was "time for the agency to ... assess a 

substantial and serious civil penalty that cannot be treated as merely another cost of doing business." Id. 

at 11. See also In the Matter of California Helitech, FAA Order No. 2000-18, 2000 WL 33125264, at *5 

(Aug, 11, 2000) ("A civil penalty has both deterrent and punitive purposes."). This rationale applies to 

Respondent's conduct here; Respondent's history of factually similar violations is an aggravating factor 

under agency sanction guidance and warrants more than the imposition of a "minimal" civil penalty. Thus, 

a $20,000 civil penalty is appropriate for each of Respondent's violations of 119.5(g) and 119.5(1).32 

Despite its foundation in agency sanction guidance, the ALJ declined to assess the agency's 

requested $20,000 civil penalty (for each violation of§ 119.5(g) and§ 119.5(1)) on the grounds that 

31 The ALl took judicial notice of six previous Orders Assessing Civil Penalties: ( 1) Order Assessing Civil Penalty dated 

September 29, 2009, FAA Case No. 2009 NM060023; (2) Order Assessing Civil Penalty dated September 28, 2009, FAA 

Case No. 2009NM060050; (3) Order Assessing Civil Penalty dated March 2, 2011, FAA Case Nos. 2009NM060124 & 

2010NM060020;(4) Order Assessing Civil Penalty dated March 2, 2011, FAA Case Nos. 2010NM060068 & 

2010NM060076; (5) Order Assessing Civil Penalty dated February 16,2011, FAA Case No. 2010NM060100; (6) Order 

Assessing Civil Penalty dated March 2, 2010, FAA Case No. 20 10NM0601 06. 

32 This amounts to a mere $2,500 aggravation above the recommended mid-range penalty and is well within the "moderate 

to maximum" sanction range provided by FAA Order 2150.3B at B-7. 

23 
Respondent's violations were merely "technical in nature" and, thus, did not rise to a degree of safety 

hazard sufficient to warrant the imposition of a substantial penalty. (See, e.g., Decision for FAA-2012-0872 

at 43). This conclusion is in error. Weight and balance control is one of the most important factors affecting 

safety of flight. (See FAA Order 8900.1, Vol. 3, Ch. 47, § l, para. 3-3975(A); Aircraft Weight and Balance 

Handbook, FAA-H-8083-1 A at 1-1 (2007) (stating that a vital factor that leads to safe operation of aircraft 

is weight and balance control)). Inaccurate weight calculations pose a significant safety risk. See In the 

Matter of Green Aviation Mgmt. Co., LLC, FAA Order No. 2012-9, 2012 WL 5378724, at *8 (Oct. II, 

2012) (suggesting the failure to include total weight on load manifests is a violation of 14 C.F.R. 

§ 91.13(a), because it involves operating an aircraft in a careless or reckless manner so as to endanger the 

life or property of another); Administrator v. Rogers, NTSB Order EA-4428 (Feb. 20, 1996) (operating an 

aircraft with an inaccurate load manifest constituted a residual violation of section 91.13(a) for a careless 

operation). Indeed, Respondent's own Weight and Balance Manual warns that "inaccurate loading, 

reporting, or failure to report information could cause issues with aircraft performance and handling, 

resulting in the endangerment of human life." (Ex. R-1; F AA-2012-0869 Complaint '1f TI.l 0 & Answer '1f 

ILl 0). 

Testimony at the hearing further corroborates the significant safety hazards that can arise when an 

aircraft has a miscalculated or unknown weight. For example, a heavier aircraft requires a longer takeoff 

distance and must reach a higher speed to become airborne. (Tr. 189, 283; see also Aircraft Weight and 

Balance Handbook, F AA-H-8083-1 A at 1-2). A heavier aircraft will also have a lower rate of climb, a 

lower angle of climb, and a lower service ceiling. (Tr. 189, 283; see also Aircraft Weight and Balance 

Handbook, F AA-H-8083-IA at 1-2). Conversely, such an aircraft would also require a higher landing 

speed and longer landing roll. (Tr. 284; see also Aircraft Weight and Balance Handbook, FAA-H-8083-IA 

at 1-2). The weight of an aircraft also affects its stall speed, rate of fuel burn, and the aircraft's ability to 

maintain cruise altitude and to maneuver. (Tr. 189; see also Aircraft Weight and Balance Handbook, FAAH-8083-1 A at 1-2). Essentially, if an aircraft is actually heavier than it purports to be, all of the 

performance numbers derived for a particular flight are invalidated. (Tr. 189). 

24 
Despite this evidence as to the potential safety hazards that can arise when an aircraft's weight is 

miscalculated, the ALJ declined to assess a more stringent civil penalty for want of evidence of actual 

harm; he noted that Respondent's baggage miscalculations in this instance had "no material effect on 

weight and balance or on aircraft performance" and thus, in "no instance was safety of flight at even the 

slightest risk." (See, e.g., Decision for FAA-2012-0872 at 43). Although admittedly, in this particular 

instance, Respondent did not grossly over-or-under-estimate the baggage weight and remained within each 

of the aircrafts' approved weight and balance envelope, see Ex. R-3-2, Tr. 263-70, this circumstance is 

merely fortuitous and does not negate the myriad safety implications that can arise when an aircraft's 

calculated weight is even slightly inaccurate. For purposes of illustration, Respondent operated Flight 4540 

(FAA-2012-0874) at a weight just 129 pounds below the maximum takeoff weight. (Ex. R-2-3). Put 

differently, the margin of error on this this flight was just over two heavy checked bags, standardized at 60 

pounds each; this margin is commensurate with the baggage accounting errors at issue in this case?3 

Moreover, as Mr. Ayers explained, at the time of operation, Respondent could not have known whether 

each aircraft was actually operated within each weight and balance envelope because the inaccurate CLR 

failed to reflect the actual account of baggage and cargo loaded on to the aircraft. (Tr. 209). 

Accordingly, Complainant's assessment of a moderate to maximum civil penalty in this instance is 

well-grounded in the potential adverse effect on safe operation. (See FAA Order 2150.3B, App'x B, Fig. Bl-c(3)). Violations have been found and sanctions have been assessed in many FAA civil penalty cases 

where there has been proof only of potential harm. See. e.g., In the Matter ofWarbelow's Air Ventures, 

Inc., FAA Order No. 2000-3, 2000 WL 298578, at *4 (Feb. 2, 2000) (collecting cases). For a factually 

analogous example, in In the Matter of Polynesian Airways, FAA Order No. 1994-40 at 12-14 (December 

9, 1994), the Administrator held that even though there was no evidence that weight or center of gravity 

limits were exceeded on any of the flights in the case, the air carrier's failure to use the most recent figure 

33 See, e.g., FDMS No. F AA-2012-0868, Flight 5840 (CLR in error by eight standard and 5 planeside loaded bags-390 

pounds); FDMS No. FAA-2012-0872, Flights 4464 and 6991 (CLR in error by two heavy bags-120 pounds); FDMS 

No. FAA-2012-0873, Flight 6756 (CLR in error by 3 standard bags and 2 heavy bags-150 pounds). 

25 
for the weight of an aircraft when preparing load manifests warranted a "stiff penalty" given the "potential 

safety implications from the violations." Such is the case here. The ALJ's characterization of Respondent's 

violation as "technical" fails to adequately account for the safety risk inherent in Respondent's failure to 

properly account for the baggage loaded onto its passenger aircraft. Cf. In the Matter of Mayer, FAA Order 

No. 1997-12 (Administrator increased ALJ' s nominal sanction after finding that ALJ' s characterization of a 

passenger's violation as "technical" gave "too little consideration to the potential safety and security 

consequences" of unruly passengers). Thus, the lack of actual harm is not mitigating. See In the Matter of 

Texas Army National Guard, FDMS No. FAA-2009-1045, Initial Decision at 5 (May 20, 2011) (failure of 

hazardous material shipped in violation of hazardous materials regulations to ignite is "fortuitous" not 

mitigating) aff'dFAA Order 2012-3 (May 22, 2012); FAA Order 2150.3B, Chapter 7, Paragraph 4.e.l 

("And it is not mitigating when a violation does not result in actual harm; that is simply fortuitous."). 

The ALJ additionally justified the imposition of a $250 per violation sanction by crediting 

Respondent with corrective action. This mitigation was in error. Corrective action is an affirmative defense. 

See, e.g., In the Matter of M & R Helicopters. LLC, FAA Order No. 2013-4 at 21 (Sept. 5, 2013). In order 

to carry its burden, Respondent must provide "sufficient, specific evidence of swift and comprehensive 

corrective action." In the Matter of Seven's Paint & Wallpaper Co., FAA Order No. 2001-6 at 6 

(May 16, 2001) (citing In the Matter of Mauna Kea Helicopters, FAA Order 1997-16 at 11 (May 23, 1997). 

Respondent failed to do so here. Jeremy Barclay, Respondent's Director of Safety Policy and Security, 

testified as to the nature and extent of corrective action Respondent has taken to address the weight and 

balance-related violations in this case. (See Tr. 397-41 0). However, the majority of what Respondent 

characterizes as corrective actions took place before the violations in this case; as such, these actions cannot 

be considered corrective, as they failed to prevent the very conduct giving rise to the violations at issue. 

First, Mr. Barclay testified that Respondent has issued two bulletins aimed at training to reduce 

discrepancies between actual baggage loads and the information provided to flight deck crews on the cargo 

load report. (See Tr. 400-401; Ex. R-7 & 8). The first of these bulletins, Respondent's Customer Service 

Training Bulletin entitled "Designated Loading Agent Responsibilities" addressed "recent inaccuracies 

26 
involving total baggage piece counts." (See Ex. R-8). This bulletin was issued on November 9, 2010, predating the earliest violation in this case by almost four months. The second bulletin, a Ground Operations 

Bulletin entitled "Aircraft Loading Procedures" was issued on April 7, 20 II, before nine of the violations 

at issue in this case. (Tr. 401; Ex R-7). Additionally, Mr. Barclay testified that Respondent's Exhibit R-6 

provided a detailed list of Respondent's weight and balance corrective actions; this list details workshops, 

trainings, and focus groups conducted by Respondent beginning as early as 2009. (Tr. 406-7; Ex. R-6). But 

14 of the 22 actions on this list pre-date all of the violations in this case, see Ex. R-6-1, and 19 ofthese 

actions predate at least one of the violations at issue here. Id.34 There is even evidence that, despite 

Respondent's repeated training, workshops, and bulletins, weight and balance accounting errors of the type 

found here continue to occur in Respondent's day-to-day operations. (See Tr. 409, 422-24). Because 

Respondent's purported corrective actions pre-date the majority of violations in this case and failed to 

prevent the very weight and balance violations at issue here, they cannot be considered comprehensive or 

corrective; thus, they are not grounds for mitigation. 

For these reasons, agency sanction guidance supports the imposition of a $20,000 civil penalty per 

violation for each of Respondent's violations of 14 C.F.R. §§ 119.5(g) and 119.5(1) in connection with the 

eight cases as delineated in the table at the beginning of this section. This penalty amount is consistent and 

in accordance with agency sanction policy in FAA Order 2150.3B. In contrast, the ALI's assessment of a 

$250 civil penalty, per flight, for an aggregate $3500 civil penalty, is not. When an ALJ assesses a civil 

penalty that is not consistent with agency sanction policy, the Administrator on appeal may reverse the 

ALJ. In the Matter of Ventura Air Servs., Inc., FAA Order No. 2012-12 (Nov. I, 2012). The Administrator 

has both the authority and duty to impose the agency's policy on appeal. In the Matter ofWarbelow's Air 

Ventures. Inc., FAA Order No. 2000-3 (Feb. 2, 2000). Here, the ALJ's imposition of a $3,500 civil penalty 

is contrary to agency sanction guidance and policy. Accordingly, it should be reversed. 

34 The violations at issue in this case are based on Respondent's conduct spanning an 8-month period; the earliest violation 

occurred on March 3, 2011, the latest occurred on November 16, 2011. 

27 
VI. CONCLUSION 

For all of the foregoing reasons, Complainant respectfully requests that the Administrator reverse 

the AU's conclusion that (I) Complainant failed to prove a violation of 14 C.F.R. §§ 119.5(g) & (I) for 

Flight 4540 as alleged in FDMS No. FAA-2012-0874; and (2) Complainant failed to meet its burden of 

establishing by a preponderance of the evidence that Respondent violated 14 C.F.R. § 121.693(a), (c), & 

(d) by failing to accurately prepare the load manifest for the 14 alleged flights and load the aircraft in 

accordance with its approved schedules and procedures. Furthermore, Complainant requests the 

Administrator find that the ALJ's imposition of a $250 sanction for each of Respondent's flights is contrary 

to law, precedent, and policy, and impose a penalty consistent with the sanction argument herein and in 

accordance with agency sanction guidance. 

By: 

Dated: September 9, 2015 

Respectfully submitted, 

Peter J. Lynch 

A~lant Chief Counsel for Enforcement 

( CUr~ C 

Casey E. G rdne , Attorney 

Enforcement Di sian, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Phone:202-267-5964 

28 
CERTIFICATE OF SERVICE 

I hereby certify that on this date I have sent the foregoing Complainant's Appeal Brief by U.S. 

certified mail, return receipt requested, postage prepaid, to: 

Todd Emerson, Esq. 

SkyWest Airlines, Inc. 

444 South River Road 

St. George, UT 84 790 

In addition, I certify that I have on this date, by U.S. certified mail, return receipt requested, postage 

prepaid, the original and one copy of the foregoing document to: 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2WIOOO 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

29 
Appendix A 

Table of Violations and Supporting Evidence 

ght 

2 Alleged Actual Loading Supporting Evidence 

40 27 Standard Tr."" 41:19-42:1; 

(Complaint=' III.l6) 43:2-5 

40 20 Planeside Tr."' 41:19--42:1; 

(Com plaine' III.l6) 43:6-11 

60 35 Standard Tr. 4 116:11-17 

III.12) 

64 2 Heavy Tr."" 23:18-24:6; 

III.l6) Exhibit C-7 

56 I Heavy Tr."" 148:1-17; 

IV.20) Exhibit C-10 

91 2 Heavy Tr.""' 153:6-18 

V.24) 

60 1 Heavy Tr.=> 96:2-19; 

VI.28) Exhibit C-15 

56 33 Standard Tr."" 117:21-118:3; 

(Complaint=> III.l4) 119:6-8 

56 2 Heavy Tr.=> 117:21-118:3; 

III.14) 119:9-11 

ef 

rlines, Inc. 

0869/0872/ 0873/ 0874/0904, -2013-0617/0619 

CLR Reflects 

19 Standard 

III.l7) 

15 Planeside 

III.17) 

23 Standard 

III.13) 

0 Heavy 

III.l7) 

0 Heavy 

III.21) 

OHeavy 

(Complaint=> III.25) 

0 Heavy 

III.29) 

30 Standard 

III.l5) 

0 Heavy 

III.15) 

Supporting Evidence 

Exhibit C-1 

Exhibit C-1 Exhibit C-3 

Exhibit C-5 

Exhibit C-8 

Exhibit C-11 Exhibit C-13 Exhibit C-25 Exhibit C-25 

1 EFFREY M. HARPER, fAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
ght 

2 Alleged Actual Loading Supporting Evidence 

53 43 Standard Tr."" 48:11-15; 

(Complaint"" -,r III.22) 49:15-17 

53 3 Heavy Tr.=> 48:11-15; 

(Complaintc=> -,r III.22) 49:20-22; 

Exhibit C-20 

53 1 Live Animal Tr."" 48:11-15; 

(Complaint"" -,r ill.22) 50:5-7 

40 250 lbs Ballast Tr."" 55:5-10; 

(Complaint"" -,r V.30) 55:20-56:4; 

Exhibit C-23 

40 100 lbs COMAT Tr."" 55:5-10; 56:5-

(Complaint"" -,r V.30) 16; 

Exhibit C-23 

45 43 Standard Tr."" 62:4-15; 

(Complaint"" -,r IV .26) 

45 3 Heavy Tr."" 62:4-9; 62:16-

(ComplainC -,r IV.26) 18; 

Exhibit C-26 

13 2 Live Animals Tr."'" 67:1-15 

(Complaint"" -,r VI.34) 

81 190 1bs COMAT Tr."" 170:9-171 :4; 

(Complaint"" -,r III.13) Exhibit C-31 

ef 

rlines, Inc. 

0869/0872/0873/0874/0904, -2013-0617/0619 

CLR Reflects 

46 Standard 

(Complaint -,r ill.23) 

0 Heavy 

(Complaint=> -,r ill.23) 

0 Live Animal 

(Complaint"" -,r III.23) 

0 lbs Ballast 

(Complaint""" -,r V.31) 

350 lbs COMAT 

46 Standard 

(Complaint'"' -,r IV.27) 

0 Heavy 

(ComplainC -,r IV.27) 

0 Live Animal 

(Complaint"" -,r VI.35) 

160 lbs COMAT 

(Complaint"" -,r III.14) 

Supporting Evidence 

Exhibit C-18 

Exhibit C-18 

Exhibit C-18 

Exhibit C-21 

Exhibit C-21 

Exhibit C-24 

Exhibit C-24 

Exhibit C-27 

Exhibit C-29 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
ght 

2 Alleged Actual Loading Supporting Evidence 

60 43 Standard Tr.""' 120:21-121:3; 

(Complaint~~ II.l2) 121:21-122:1; 

Answer ~ II.12 

49 I 1 Heavy Tr."" 106:5-20; 

(Complaint""~ II.l2) Exhibit C-36; 

Answer~II.12 

ef 

rlines, Inc. 

086910872108731087410904, -2013-061710619 

CLR Reflects 

36 Standard 

(Complaint'"'~ ll.l3) 

I 0 Heavy 

(Complaint""~ II.l3) 

Supporting Evidence 

Exhibit C-32 

Exhibit C-34 

JEfFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
Appendix B 

Load Manifest Cargo Weight v. Cargo Load Report Cargo Weight 

Cargo Weight Cargo Weight 

Flight I Load Manifest Calculated from CLR 

NQ 

-0868 5840 : 1112 lbs 19 Standard x30 lbs31 

(Exhibit C-2) 15 Plane Side x30 lbs32 

Freight 92lbs 

(Exhibit C-1) 

-0869 1160 I 1410 lbs 23 Standard x 30 lbs 

(Exhibit C-4) 24 Planeside x 30 lbs 

(Exhibit C-3) 

-0872 4464 I 1980 lbs (6 + 60) Standard x 30 lbs 

(Exhibit C-6) (Exhibit C-5) 

gned a weight of 30 lbs each. Exhibit R-1-1, Page 3-9; Tr."" 378:10-13. 

signed a weight of30 lbs each. Exhibit R-1-l, Page 3-9; Tr.~ 378:21-379:2. 

ef 

rlines, Inc. 

0869/ 0872/0873/0874/0904. -2013-0617/0619 

= 570 lbs 

= 450 lbs 

= +92lbs 

Total: 1112 lbs 

= 990 lbs 

= +720 lbs 

Total: 1410 lbs 

= 1980 lbs 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
Cargo Weight 

Flight I Load Manifest 

N2 1 

0872 6756 • 1412 lbs 

1 (Exhibit C-9) 

0872 6991 11680 lbs 

(Exhibit C-12) 

0872 6960 11840 lbs 

(Exhibit C-14) 

0873 6756 11530 lbs 

(Exhibit C-17) 

ef 

rlines, Inc. 

0869/0872/0873/0874/ 0904, -2013-0617/0619 

Cargo Weight 

Calculated from CLR 

21 Standard x 30 lbs 

26 Plane Side x 30 lbs 

CO MAT 2lbs 

(Exhibit C-8) 

34 Standard x 30 lbs 

22 Plane Side x 30 lbs 

(Exhibit C-11) 

-----------

29 Standard x 30 lbs 

24 Plane Side x 30 lbs 

Ballast 250 lbs 

(Exhibit C-13) 

------

30 Standard x 30 lbs 

21 Plane Side x 30 lbs 

(Exhibit C-16) 

= 630 lbs 

= 780 lbs 

= +2lbs 

Total: 1412lbs 

= 1020 lbs 

= +660 lbs 

Total: 1680 lbs 

= 870 lbs 

= 720 lbs 

= +250 lbs 

Total: 1840 lbs 

= 900 lbs 

= +630 lbs 

Total: 1530 lbs 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
Cargo Weight Cargo Weight 

Flight ' Load Manifest Calculated from CLR I 

N2 

-0874 4553 12190 lbs 46 Standard x 30 lbs 

(Exhibit C-19) 27 Plane Side x 30 lbs 

(Exhibit C-18) 

-0874 4540 11880 lbs 35 Standard x 30 lbs 

t (Exhibit C-22) 2 Heavl3 x 60 lbs 

12 Planeside x 30 lbs 

CO MAT 350 lbs 

(Exhibit C-21) 

-0874 4445 12130 lbs 46 Standard x 30 lbs 

(Exhibit C-25) 25 Planeside x 30 lbs 

(Exhibit C-24) 

ed a weight of60 1bs each. Exhibit R-1-1, Page 3.9; Tr.= 378:16-20. 

ef 

rlines, Inc. 

0869/0872/0873/0874/0904. -2013-0617/0619 

= 1380 lbs 

= +810lbs 

Total: 2190 lbs 

= 1050 lbs 

= 120 lbs 

= 360 lbs 

= +350 lbs 

Total: 1880 lbs 

= 1380 lbs 

= +750 lbs 

Total: 2130 lbs 

JEFFREY M. HARPER. FAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
Cargo Weight 

Flight I Load Manifest 

N2 

-0874 4613 l2010 lbs 

(Exhibit C-28) 

-0904 4781 11180 lbs 

(Exhibit C-30) 

ef 

rlines, Inc. 

 0869/0872/0873/0874/0904, -2013-0617/0619 

Cargo Weight 

Calculated from CLR 

37 Standard x 30 1bs 

1 Heavy x 60 lbs 

(14+ 13) Planeside x 30 lbs 

Freight 30 lbs 

(Exhibit C-27) 

18 Standard x 30 lbs 

1 Heavy x 60 lbs 

14 Planeside x 30 lbs 

CO MAT 350 lbs 

(Exhibit C-29) 

= 1110 lbs 

= 60lbs 

= 810 lbs 

= +30 lbs 

Total: 2010 lbs 

= 540 lbs 

= 60 lbs 

= 420 lbs 

= +160 lbs 

Total: 1180 lbs 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161 

PAX: (425) 227-1007 
Cargo Weight 

Flight I Load Manifest 

N2 

-0617 1160 12408lbs 

(Exhibit C-33) 

-0619 5449 I 810 lbs 

(Exhibit C-35) 

ef 

rlines, Inc. 

 0869/ 0872/0873/0874/0904, -2013-0617/0619 

Cargo Weight 

Calculated from CLR 

The CLR shows: 

36 Standard x 30 lbs = 1080 lbs 

1 7 Planeside x 30 lbs = 510lbs 

CO MAT 308lbs = +308lbs 

Total: 1898 lbs 

ASI observed 43 Standard bags, 

an additional weight of: 

(43- 36) Standard x 30 lbs = +210 lbs 

Total: 2108 lbs 

(Exhibit C-32, Tr."" 120:21-121:3, 121:21-122:1) 

16 Standard x 30 lbs 

11 Planeside x 30 lbs 

(Exhibit C-34) 

= 480 lbs = +330 lbs 

Total: 810 lbs 

JEFFREYM. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161 

fAX: (425) 227-1007