11/30/2012 08:35 4252271007 ANM7 

PORTIONS OF THIS DOCUMENT REFER TO' 

EVIDENCE UNDER SEAL 

PER ORDER OF NOVEMBER 2, 201.2.'fl 1 n ~ lJ 

JEFFREY HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND AVE., SW 

RENTON, WASHINGTON 98057 

TELEPHONE: (425) 227-2161 

FACSIMILE: (425) 227-1007 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matters of: 

SkyWestAirlincs, Inc. 

:1. Factual Background 

FAA Case No. 20 11NM0600 11 

DMS No.: FAA-2011-0485 

FAA Case No. 2011NM060010 

DMS No.: FAA-2011-0486 

FAA Case No. 2011NM060033 

DMS No. FAA-2011-0680/0779 

FAA Docket No. CPl.lSWOOOO 

Honorable Richard C. Goodwin 

POST-TRIAL BRIEF 

PAGE 02/23 

These cases aU involve miscounting of baggage of Sky West flights and the subsequent operation 

of those flights with correspondingly inaccurate weight and balance data. The use of correct 

weight and balance data is critical to flight safety, which Respondent recognizes: 

~WARNING- INACCURATE LOADING, REPORTING, 

OR FAILURE TO REPORT INFORMATION COULD CAUSE 

ISSUES WITH AIRCRAFT PERFORMANCE AND HAN~ 

DUNG, RESULTING IN THE ENDANGERMENT OF HUMAN LIFE. 

Exhibit C-1 02. Complaints Section I and Answers. 

Complainant's Post-T:dal B:rief. 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA.-201l-048S, 0486,-0680,-0779 

Page 1 of20 

JEFFREY M. HARPER, F AAATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 

1.1. Case No. 2011NM060011 

OMS No. FAA-2011-0485 

This case involves three Sky West flights. 

ANM7 PAGE 03/23 

The first is SkyWestFlight 4659 on November 22,2010, fmm Billings, Montana to Salt Lake 

City, Utah. Complaint,~ 17-20. The second is SkyWest Flight 6692 on December 14, 2010 

from Los Angeles, California to San Diegol California. Complaint, ~~ 21-24. The third is SkyWest Flight 4800 on December 15,2010 from Los Angeles, California to San Diego, California. 

Complaint, ~1 25-28. 

In its answer, SkyWe:st admitted all the factual allegations with the exceptions of numbers 18, 22, 

and 26 which alleged the number of bags actually loaded on Flights 4569, 6692, and 4800, respectively. First Amended Answer. 

On Flight 4659 there were 38 standard checked bags on the aircraft. Transcript 65:21-66:1, 

66:20-22: There were two heavy bags on the aircraft. Transcript 65:21---{56;1., 67: l-3. The cargo 

load report (CLR) for the flight listed 40 standard checked bags and no heavy bags on board the 

aircraft- two too many standard checked bags and two too few heavy bags. Complaint ~ 19; 

First Amended Answer~ FAA Case No. 20l.J.NM060011, ljf JIL 19. 

On Flight 6692 there were 19 standard checked bags on the aircraft. Transcript 45:14-16. There 

was one heavy bag on the aircraft. Transcript 45: 17~19. The CLR for the flight listed 20 standard 

checked bags and 5 heavy bags o:o. board the aircraft- one too many, and four too man.y, respectively. Complaint~ IV.23; First Amended Answer, FAA Case No. 2011NM060011, ~ IV.23. 

On Flight 4800 there were 43 standard checked bags on the aircraft. Transcript 49:11-13. There 

were four heavy bags on the aircraft. Transcript 49:14--16. There were 12 planeside valet/service 

items on the aircraft. Transcript 49:20-50:2. The CLR for the flight listed 59 standard checked 

bags, no heavy bags, and no pl.aneside valet/service bags on board. Complaint~ V.27, First 

Amended Answer, FAA Case No. 2011NM06001l, ~ V.27. 

Complainant seeks a total sanction of$99,000 i.o. this case, or $33,000 per flight. Complaint 

~ VJ.3. 

1.2. Case No. 2011NM060010 

OMS No. FAA-2011-0486 

This case concerns SkyWest Flight 6573 Oll November 17, 2010, from Denver, Colorado to 

Yampa Valley. Hayden Colorado. On December 2, 2011, the Honorable Judge Goodwin granted 

Compla1nau.t's Motion for Decision on the qu.estion ofliability. Order Granting in Part Complainant's Motion for Decision in FDMS No. FAA-2011-0486. The flight was operated with tbree 

heavy bags on board, when only 2 had been accounted for in the flight's weight & bal:mce ioformation.Id. 

Complainant's Post-Trial Br:icf 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-201 1-0485,0486,-0680,-0779 

Page 2 of20 

JEFFREY M- HARP!!R, FAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227~1.007 
11/30/2012 08:35 4252271007 ANM7 PAGE 04/23 

Complainant seeks a sanction of $33,000 for this flight. Complaint 'if III.3. 

1.3. Case No. 2011NM060033 

DMS Nos. FAA-2011-0680/0779 

This case concerns SkyWest Flight 4451 on FebJUru;y 15) 2011, from Salt Lake City to Casper, 

Wyoming. Complaint, ,-nj 10-13, Transcript 12:15-14:6. Jn its answer, Sky West admitted all the 

factual allegations with the exception of number 11, which alleged the number of bags actually 

loaded on Flight 4451. 

On Flight 4451 there was one heavy ba.g on the aircraft. Transcript 30:18-21. Tile CLR :for the 

flight listed no heavy bags on the aircraft. Complaint 'if III.12, FirstAmendedAnswer ~ III.l2. 

Complainant seeks a sanction of$33,000 for this flight. Complaint~ IV.3. 

2. Argument 

2.1. Double Docketing 

On October 4, 2012, ALJ Yoder, noting the double-docketing of FAA. Case No. 2011NM060033 

ynder two DMS numbers, issued an Order ''closing" one ofthe doc~ets. Du~:to<the un.ol~~:r, t~ngu,age used in that orper, Complainant and Respondent were ordered,on. Octol!~r.2, 2014,.tq brief 

the following issues: . ,: .· ... " -- ,_., ; ' . 

1. What authority, if any, is there for issuance of a. ••N otice of Assignment" (NO A) iri F edcral Aviation Administration (FAA) cases which purportedly assign cases to anAdmini!:)trative Law Judge (ALJ)? 

2. Are NO As required in FAA cases? 

3. Are NOAs allowed jn FAA cases? 

4.- Is a fom1al NOAnecessary before au.ALJ can perfonn any function with respect to a 

case? 

5. Does an AL.T have jurj.sdictiou over a case which is not assigned to him/her byJa.Ilguage in~NOA? , . . . . ..· ... . . 

6. Which. DMS case! if any, was "closed" by the October 4, 2011 pleadi~g? ·!.. 

· 7. Is "closing a docket" the same as dismissing a docket/case? 

8. Does closing a docket preclude the parties from having the issues adjudic;ated? ·. .. •• · 1 

9. Have either FAA-2011-0680 and/or FAA-2011-0779 been dismissed by the October 4, 

2011 pleading? 

10. Based on the actions ofthe October 4, 2011. pleading, have both cases been dismissed? 

Contplai.n.ant's Post-Trial Brief 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486, -0680, ~0779 

Page 3 of20 

JEFFREYM. HARPER, FAAATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
11/30/2012 08:36 4252271007 ANM7 PAGE 05/23 

11. Any other matter the parties feel should be briefed with respect to the Order of October 4, 

2011. 

2.1.1. NOAs are not required in FAA cases, although they are not prohibited, as they fall under the 

authority of an Administrative Law Judge to regulate the course of a proceeding. 

Section J.3.205(a) of the Rules of Practice describes the powers of an Administrative Law Judge 

(ALJ). Arnong those powers are the ability to "give notice of, and hold, prehearing conference 

and hearings," ''regulate the course of the hearing, H and "dispose of procedural motions and requests." Although NO As are not listed specifically, they are also not specifically excluded from 

the powers of ALJs by 13.205(b). 

Arguably, the issuance of a NOA falls within the scope of an ALJ's authority to dispose of procedural requests or to regulate the course of a hearing. Certainly, in. a forum with more than one adjudicator, as a practical matter there needs to be some method to designateALJs to handle particular matters. Although Complainant is not priv-y to the internal operating proced)ll'es of the Department of Transportation (DoT) Office of Hearings, it does appear that the NOA is the means 

ordinarily used to accomplish the task of associating a particular ALJ with a particular case. 

It seems clear that the jurisdiction of an AL.T a1ises as a consequence of the filing of a Complaint 

by an agency attorney. 14 C.F.R. §§ 13.208(a) (providing that the agency attorney should suggest 

a location for a hearing when filing a complaint) and 13.205(a) (empoweringALJs to regulate the 

course of the hearing, which would presumably include the question of where the hearing would 

be held). 

The use ofthe term "an Administrative Law Judge•• [emphasis added) in Rule 13.205(a) indi~ 

c~tes, notwithstanding the existence· or absence of an NOA, all DoT ALJs have jurisdicti<:>,n over 

cases where a Complaint has been filed. As previously discussed, it wouJd be pwdent as a pra.ctical matter to have some way of formalizing which specific ALJ will be handling a par:tic11lar. case. 

2.1.~2. The "closed" docket was OMS No. FAA"2011-0680, as the nearest pronoun antecedent to 

athat" is "DMS No. FAA"2011..0680;" this closure did not dismiss the underlying substantive case. 

As a general rule, the antecedent to a pronoun refers to the most recently encountered noun.1 The 

October 4. 20 11 order reads: 

1 "Unclear Pronouns and Antecedents," http://web.cn.edu/kwheeler/gram_pronoun_unclear.html, last visited 

November 15, 2012 ("The convention is that [unclear pronouns] refer to the closest noun or pronoun."). 

The Little Brown H(lndbook. Sixth Edition, reference 12b ("Place a pronoun close enough to its antecedent to 

ensure clarity."). . 

The Chicago Ma~iual ofSryle, Sixteenth .Edition, 'U 5.27 ("A pronoun typically refers to an ailtecede~t_: that .is, 

an earlier noun, pronoun. phrase or clause in the same sentence or, if the -reference is unambiguous, in a previous sente.nce.''). 

Coroplai.nan.t's Post-Trial Brief 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-20 ll ~0485, 0486, -0680, -0779 

Page 4 of20 

.TEF'f'RF.Y M. HARPER, FAAATIORNEY 

TEL: (425) 2:27~:2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANM7 

TI1e same proceeding was previously docketed in FDMS as FAA-2011-0680 

but was not transmitted to this office. Accordingly, that docket is hereby closed. 

PAGE 05/23 

Applying the general rule, the nearest noun is "FAA-2011-0680~" which was not transmitted to 

the DoT Office of Headngs and had not been assigned to a Judge. Thus, "that" refers to 

"FAA-201.1. ~0680." Also, as FAA-2011-0779 had already been in assigned, it is reasonable to 

conclude some substantive action had been taken case -0779, making it more logical to 

close ~0680, which, having not been assigued~ would not have had any substantive action taken. 

The conte:;rt of the la.u.guage used in the October 4, 2011 Order makes it clear 1hat the underlying 

action was not being dismissed; the October 4 Order reads "that docket" not "those dockets." 

Tims, the case is still viable lUlder at least one docket. Neither would the closure act to dismiss 

the case in such a manner ihat the doctrine of resfudicata/claim preclusion would be a defense in 

the other docket. For a claim to be precluded in a subsequent action, the earlier action must have 

resulted in a final judgment on the merits. Restatement 2nd of Judgments,§§ 17(3)2 alJd 27.3 

Even if it were assumed the "closure" of a docket acted to dismiss the underlying case, Complainant would not be barred from refiling the Complaint. 

In sum, tl1e Order of October 4, 2011. had the effect of administratively closing DMS 

No. FA.A-2011-0680; it had absolutely no effect of the viability of the underlying substantive 

c~c which proceeded to hearing as DMS No. F AA-2011-0779. Even if it had dismissed the underlying substantive case, it am.ouuted to harmless error. Since there was nofmal judgment on 

the merits any dismissal could have been "cured" by the refiling the Complaint. Since the case 

proceeded to hearing, the necessity of actually doing so is moot. 

2.2. Merits- The record in these cases demonstrates Respondent operated iJJrciaft 

with inaccurate loading data. 

Respondent has admitted all the material facts alleged in the Complai:o.t, with the exception of the 

number of bags actually loa.ded onto the aircraft. Respondent is a direct air carrier. Answers_4 Respondent's Weight and Balance progran1 is incorporated into its operations specifications. AnGrammar Girl, "Pronouns and Antecedents," http://grammar_gulckanddirtyti.ps-com/ 

pronolll)s~aud"an.tecedents.aspx. last visited November 15, 2012. ("Our ftrst antecedent problem concerns antecedents that are missing or very far away from thei.r corresponding pronouns."). 2 "A judgment ln favor of either the plaintiff or the defendant is conclusive, in a subsequent action between 

them on the same or a different claim, with respect to any issue actually litigated and determined if its determination was essential to thatjudgm.en.t'' [emphasis added]. · 3 ''When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the detcrminati~n is essential to the judgmen4 the determination is con.clusivc in a subsequent action between the 

farties, whether on the same or a different claim" [cmphasi.s added]. · 

Admitting Respondent holds ·a Scheduled Air Carrier Certificate and conducts its operations under Part 121. 

Complain ant's Post-Trial Brief 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-20 11-0485, 0486, ~0680, ~0779 

Page 5 of20 

JEFFREYM. HARPER, FAAATTORNEY 

TEL: (425) 227-2161. 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANtv17 PAGE 07/23 

swers.5 That program requires Respondent's personnel to mark the number of standard, heavy, 

and planeside loaded ba.gs in the appropriate block of the CLR. E.g. Answer, FAA Case 

No. 2011NM060011 ~1 11, 13, 14, and 15. Respondent's Weight & Balance Manual, in tum, requires that the data from the CLR be used to construct the load manifest. Exhibit C-1 02, ~ 12.A 

and B. 

In each flight in each case~ the aircraft were operated with CLRs and load manifests 

which did not properly reflect the actual count of baggage loaded on the aircraft: 

Case No.- Flight CLRData6 Actual Coullt 7 

FAA~2011~0485- 4659 40 standard bags. 38 standard bags.8 

2 heavy bags.9 

............. , .... , .• , ........................ -.. ·-·------------··--·-----·----··--------·----·-··""''''"''' .... , ... , ........ ---·---·------·------.. ·---------·Tu·------

FAA-2011-0485- 6692 20 standard bags. 19 standard bags. 

5 heavy bags. 1 heavy bag. 1 1 

·----.. ·----------·---.. _ .. _______ . ______ ,.,~ ··-·····~·~···-····-·-.. -.. --.. ·--·----·-.. --.. · .. ---·--·--------·----rT-----·--··· 

FAA-2011-0485- 4800 59 standard bags. 43 standard bags.· . 

FAA-2011-0486- 6573 

0 heavy bags. 

0 planeside bags. 

Motion for Decision 

granted 12/2/11 

4 heavy bags. 13 

12 planeside bags. 14 

Motion for Decisi.on. 

granted 12/2/11 ---·-·-···-····-.. ·····-····-·······-----·--· .. ·-·-·-.... __________ .. _ .. ___________ .. ___ ,. _____ ............. ____ ........................... _ ...... --·------.. ··---·-r·-·-----·---.... --.--.. -· F AA-20 11-0680/0779- 4451 0 heavy bags. l heavy bag. :> 

In. every case, Respondent acknowledges that the CLR did not accurately reflect the baggage ~­

tually loaded on the aircraft Transcript 83:11-16.16 

5 Admitting its operations specifications require aircraft loading be accomplished according to its Weight & 

Balance Operations Manual (W &B Manual). 

6 All CLR figures were admitted by Respondent in its Answers. 

7 All testimony regarding the number of bags actually on the aircraft is unrebutted. 

8 Transcript 65:21-66:1, 66::20-22. 

9 Transcript 65:21-66:1, 67:1-3. 

JOT • ranscnpt 45:14-16. 

JJ Transcript 45:17-19. 

12 Transcript 49:i l-13. 

13 Transcript 49:14-16. 

J4 • Transcnpt 49:20-50:2. 

15 Transcript 30:1.8-21. . . 16 Counsel for respondent: " ... there's no dispute that there was some disparity between the nu~bcr of items 

that were recorded on the Cargo Load Report and the number of items that were observed by three FAA in~ 

spectors as they were deplaned from the aircraft." See Footnote 2. 

Complainant's Post-Trial Brief 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA~20l. J -0485, 0486, -0680, -0779 

Pa2e 6 of20 

JEFFREY M. FURPER, FAAATTORNEY 

TEL: (425) 227<2161 

FAX: (425)227-1007 
11/30/2012 08:36 4252271007 ANM7 

2.2.:1.. Respondent operated as an air carrier under Part 121 in violation of its operations 

specifications. 

PAGE 08/23 

Section 119.5(g) of the Federal Avia:tion Regulations (FAR) prohibits a person. from operating as 

an air carrier in violation of its operations specifications. Respondent is an air carrier. Answers. 

Its W &B Manual is incorporated into its operations specifications. Answers, Exhibit C-1 03. The 

W&B Manual requires the number ofbags to be marked in the appropriate block on the CLR. 

.Answers. As the table above indicates, Respondent failed to do this for each flight in question, 

thereby violating its operations specifications. 

2 . .2.2. Respondent operated an aircraft under Part 121 in violation of its operations specifications. 

Section 119.5(1) of the FAR prohibits a person from operating an aircraft tmder Part 121 in. violations of its operations specifications. As discussed above, Respondent violated its operations 

specifications by recording inaccurate information on the CLR for the flights in qu.estion. Respondent then operated each flight while in violation oftiJose operations specifications. Answers.17 

2.2,3, Re:.;pondent operated aircraft with inaccurate weight and balance data. 

Section 121.693 requires that the load manifest contain. the total weight of the aircraft~ fuel and 

oil, cargo and baggage~ passengers and crcwmembers, as computed under approved procedures. 

14 C.F.R. §§ l2L693(a) and (c). Additionally; a properly calculated weight is required to show 

the aircraft is loaded such that the center of gravity is within approved limits. 

14 C.F.R. § 12l.693(d). 

Approved procedures, as applied to tins case~ means the procedure found in Respondent's W&B 

Manual as incorporated into its operations specifications. Exhibit C-103; Transcript 133:17-19. 

Because the CLR for each flight inaccurately reflected the amount of baggage actually loaded on 

the aircraft, it was not completed using approved procedures. 

The CLR data is, in turn, used to complete the load manifest. Exhibit C-1 02, ~~ 12.A and B. Although Respondent implies that corrections to the load manifest might have been m.ade to correctly reflect each aircrafts' loading, there is no substantiating evidence in the record of this allegation. The sole evidence in this case shows that Respondent uses the CLR data to generate the 

lgad manifest, in accordance with its weight and balance program. !d. Although the weight and 

balance program allows for last minute changes to aircraft loading, Exhibit C-1 07~ ~ ll.B de- . 

scribes procedures to be followed when aircraft loading changes. Changes are to be reflected on 

the CLR, made with the concurrence of the PIC, with notification to Station Operations. Exhibit 

7 Admitting to allegations taking the general form of"SkyWest thereafter operated [N-numberJ as Flight 

[Flight Number] to {destination]." 

Complainant's Post-Trial Brief 

In. tbe. Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486,-0680,-0779 

Page 7 of20 

JEFFREY M. HfJU>ER, E-\A.ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANt•17 PAGE 0'3/23 

C-1 02,, ll.B; Transcript 147:16-18. The :record is devoid of any evidence that any of these procedures took place on any of the flights at issue. 

The preponderance of the evidence indicates that Respondent completed the CLRs with incorrect 

information, and used the CLRs to complete the load manifests~ which would in tum be inaccurate. Thus, Respondent violated Section 121.693(a)~ (c), and (d). 

2.3. Sanction -The sanction sought In these cases is appropriate and warranted by the 

facts. · 

Contrary to Respondent's asserted affirmative defenses, the sanction sought in this case is neither 

"excessive'' nor does it violate FAA policy. 

2.3.1.. Factual Background 

Respondent is an air carrier. Answers. Sky West is a large business, with operating revenues in 

excess of $1 do million per year and more than 1,500 employees. Respondent's Responses to 

Complainant's Discovery Requests, Requests for Admission Nos. 1 and 2. 18 

It has the financial ability to pay a $33,000 penalty in DMS No. FAA"2011-0486. Respondent's 

Response to Complainant's Discovery Request, Request for Admission No. 3. 19 It has the financial ability to pay a $99,000 pe11alty in DMS No. FAA-2011"0485. Respondent's Response to 

Complainant's Discovery Request, Requ.est for Admission. No. 4.2° It has the financial ability to 

pay a $33,000 penalty in DMS No. FAA-2011-0680/0779. Respondent's Response to Complain~ 

ant's Discovery Request, Request for Admission No. 3.21 

Respondent has paid $243,000 in civil penalties over eight cases involving improperly documented baggage and cargo duriJ1g the time peliod December 2008 through September, 2010:n 

FAA Case No. Penalty Paid FARs Violated Date of Violations 

2010NM060106 $24,000 119.5(g), 119.5(1), 121.693(a), September, 2010 

121.693(c), 121..693(d) 

20IONM060068 $144~000 

2010N1'v1060076 

119.5(g), 119.5(1), 121.693(a), April-May, 2010 

121.693(c), 121.693(d) 

18 Docket lds. FAA-2011-0485-0013 and FAA-20ll-0779·0008. 

19 Docket ld. FAA-2011-0485-0013. 

20 Docket Id. FAA-2011-0485-0013. 

11 Docket Id. FAA-2011-0779-0008. 

22 Docket Id. FAA-2011-0485-0013, Requests for Admission 5-10; 

Docket Id. FAA-2011-0779-0008, Requests for Admission 4-9. 

Complainant's Post· Trial Brief 

1n the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486, -0680, -0779 

Page 8 of20 

JEFFREY M. HM.PER, FAA ATTORNEY 

1EL: (425) 227"2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 

2010NM060020 $45,000 

2009NM060124 

2010NM060l00 $10,000 

ANfv17 

119.5(g), 119.5(1), l21.693(a), August-November, 

121.693(c), 2009 

119.5(g), 119.5(1), l21.693(a), August, 2010 

121.693(c), and 121.693(d) 

2009NM060050 $10,000 l19.5(g), 119.5(1), 121.693(a), March, 2009 

121.693(c), 

2009NM060023 $10,000 119.5(g), involving improper~ December, 2008 

ly documented baggage loadmg. 

PAGE 10/23 

A discussion of the aircraft perfonn.ance implications of improper loading can be found in the 

FAA Weight & Balance Handbook, FAA-H-8038-lA, Chapter 1 (Exhibit C-4).Among th.e potential hw..ards listed ther.e are: 

• Excessive Structural Loads • Degraded Climb Performance 

• · Reduced Range • Exceeding center-of-gra1iity limits 

• Higher takeoff speeds • Higher landing speeds 

• . Longe.r talceoff distances • Longer landing distan9es: ·. 

• Reduced service ceiling 

Id. Respo~dent is aware of these hazards to safe operation posed by inaccurate.loading- its 

W &B Manual wams:23 . 

I!J WARNING- INACCURATE LOADING, REPORTING, OR 

FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLIN~ 

RESULTING IN THE ENDANGERMENT OF HUMAN LIFE. 

(SEALED) It has also issued a Customer Service Bulletin that states "full cbnipliance" with its 

loading procedures is required to ~'mitigate identified safety risks~" Exhibit R-11 (Under Seal) 

and Transcript Under Seal29:3-l8. (END SEALED PORTION) 

Respondent operates its aircraft with a 20-30 minute turnaround time. Transcript 75:20-76:5, 

109:4-10, and 145:11-22. 

~J Complaint in FAA-2011-0485, ~ II.16; 

Complaint in FAA-2011-0486, '11 U.9; 

Complaint in FAA-2011-0680/0779, '11 II.9; and 

Answers_ 

Complainant's Post-lrial Brief 

Jn the Matters of SkyWestAJ:rU:nes, Inc. 

OMS Nos. FAA-2011-0485, 0486, -06&0, -0779 n .... ,.A o ,...;-.,n 

JEFFREYM. HARP£R., FAAAJTORNEY 

TEL: (425) 227-2161 

FA."'<: (425) 227-1007 
11/30/2012 08:35 4252271007 ANM7 PAGE 11/23 

2.3.2. Standard 

'•An administrative agency is entitled to substantial deference in assessing the civil penalty ·appropriate for a violation of its regulations. The Administrator's choice of a sanction is not to be overturned unless it is unwarranted iJJ. law or without justification in fact "NL Industries, lnc. v. 

Dept. ofTransportation, 901 F.2d 141, 144 (D.C. Cir. 1990). 

Further, 1J,te Administrator has the ability to impose the FAA's sanction policy on appeal if the 

assessed civil penalty is not consistent with the policy. In the matter ofWarbelow~'i Air Ventures, 

Inc., FAA. Order No. 2000-3 (February 3, 2000) at 20; In the matter of Northwest Airlines) FAA. 

Order No. 1990-37 (November. 7~ 1990) at 8-9. 

Under 49 U.S.C. § 46301 (a)(l )) "a person is liable to the United States Govenunent for a civil 

penalty of not more than $25,000 for violating ... (B) a regulation prescribed or order issued tmder any provision to which clause (A) of this paragraph applies." The authority for issuing Parts 

119 and 121 of Title 14, Code of Federal Regulation includes 49 U.S.C. Chapters 401, 441, and 

447, all of which are covered by clause (A). 49 U.S.C. § 46301(a)(l)(A), 14 C,F.R. Parts 119 and 

12l(Preamble)~ . 

In detennining an appropriate civil penalty, the Administrator considers a variety of factors: 

1. The nature and circumstances ofthe violation, c 

2. The extent and gravity of the violation. 

3. The person's degree of culpability, 

4. The person's history of prior violations, 

5. The person's ability to pay the civil penalty, 

6. Tile effect on the person's ability to stay in business, and 

7. Oilier matters as justice may require. 

In the Matter ofWarbelow :s- Air Ventures, Inc., FAA Order No. 2000-3 at 16-17 n. 22 and 21 

(February 3, 2000). 

The Administrator has the burden of j ustif);ing the an1ount of civil penalty sought. 14 C .F.R. 

§ 13.224(a); In the Matter of Luxemburg. FAA Order 1994-18 (June 22, 1994) at 4. To guide the 

FAA's prosecutorial discretion, the FAA has promulgated penalty guidelines, which are found in 

FAA Order 2150.3B Chapter 7 and Appendix B dated October 1, 2007 (Sanction Guidance). The 

San.ction Guidance contains tables that establish specific penalty ranges for different types ofviolations?4 The starting point for a sanction determination is the middle of the sanction. :r.ange. 

24 Sanction Guidance, Appendix B. 

Complainant's Post-Tr.Jal Brief 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, .0486,-0680,-0779 

Page l 0 of20 

JEFFREY M. ff.t..RPBR, FAAATIDRNEY 

TEL: (425) 227-2161 

FAX: (425)227-1007 
11/30/2012 08:35 4252271007 ANM7 PAGE 12/23 

Sanction Guidance, Appendix B, ~ 3 .c. The Complainant's sanction detenni.nati.on does not, 

however, reflect a fixed mathematical computation; in addition to the published penalty ranges, it 

takes into account thirteen factors set forth in Chapter 7, paragraph 4 of the sanction gnidance, 

wblch address the issues set forth in Warbelow.25 

TI1ese fa.ctors are used to adjust the sanction up or down. from the middle of the recommended 

range. The FAA Order reflects the Administrator's general views about appropriate civil penal~ 

ties; civil penalties must reflect the totality of the circumstances surrounding the violations. Folsom s Air Service, Inc., FAA Order No. 2008~ 11 (November 6~ 2008). Th.e weight to be given to 

each of these factors is within the discretion of the Complainant; '<the Complainant maintains 

relative prosecutorial discretion in determining the case's fmal aggregate weight in proposing the 

level of civil penalty." In the Matte-r of William A. Luker, Jr., FAA Docket No. CP09SW0008, · 

2010 WL 1989430 (May 13, 2010) (Order Granting Complainant's Motion for Summary Judgm.e:ot). 

• ... > ' -~-·~ - ••• -~ : • 

2.3.3: Respondemt's.Affirmative Defenses lack merit. 

Respondent raises ~even affmnative defenses:26 

' • '' •' •• ; '-l ;·,' ~ 

. • . .''.,.:· ··.·. 

:1' .... 

1 .. The sanction squght is unwarranted. 

· 2. The case is 1Ulwarranted. 

3. Aircraft perform.a.uce was not actually 

affected by the errant weight and balance infonnation. 

4. Respondent has taken subsequent reme-

. dial measures. 

25 Those factors are: 

a.. Nature of the violation; 

b: Whether the violation was inadvertent and 

not deliberate; 

c. The certificate holder's level of experience; 

d. The attitude oftbe violator.; 

e. The degree of hazard; 

f. Whether there was action. taken by the employer or other authority against the em.-

ployee that committed the violation(s); 

26 Answers. 

Complainant's Post-Trial Brief 

In the Matters of Sky West A.i.rJ.ioes, Jnc. 

DMS Nos. FAA-201 l-0485, 0486, -0680, -0779 

Page ll of20 

5. The average weight program, by ,its na-. · 

ture, penni ts use of weight ao.d balance . 

information at odds with th.e actual 

weight of the aircraft. 

6. Respondent's actions we~·e an honest 

mistake. 

7. Respondent has taken all ~~tion reg,uircd 

to prevent future weight and balance issues .. 

g. Use of the certificate; 

h. Violation history; 

i. Decisional law; 

j. Ability to absorb the sanction; 

k. Consistency of Sanction; 

L Whether the violation was reported vohmtariIy; and · 

m. Corrective Action. 

.TEFFREYM.HARPER, FAAATTORNEY 

TEL: (425) 227-2161 

FAX (425) 227~1007 
11/30/2012 08:36 4252271007 ANM7 

2,3.3.1. Affirmative Defenses 1 and 2 are merit/ess- Both the merits of the cases and the 

proposed sanctions are warranted by the facts. 

PAGE 13/23 

The fJrst two defenses are without merit. As discussed above, the case is warranted; even Respondent effectively admits the violations occurred. As discussed below, the sanction is appropriate and comports with the Administrator's sanction. guidance. 

2.3.3.2. Affirmative Defense 3 is merftless- Actual harm need not be shown to prove a 

violation and impose a penalty. 

The third defense amounts to a "no harm, no foul" exculpatory theory. This defense is meri.tl.ess; 

Complainant does not need to show actual harm to prove a violation and impose a penalty. 

Complainant concedes that there were no actual safety consequences to Respondent's operation 

of aircraft with inaccurate loading data. Complaint does not allege that some actual harm occurred as a result of Respondent's actions, or that the operating limitations of the aircraft were 

actually exceeded. Had some actual harm occurred~ that would have been an aggravating factor. 

FAA Order 2150.3B, Chapter 7, ~ 4.e.l ;

27 In the Matter of Stebbins Aviation, Inc., FAA O~derNo. 

2006-3 at 5~ 2006 WL 465373; In the Matter of Aero National, Inc., FAA Order No. 2000-26 at 4, 

2000 VVL 1874245; Cf FAA v. Teas Army National Guard~ 2011 WL 2001829 a:t 4; FAA v. Fe,deral Express, Inc., 2011 WL 1206090 at 7 (absence of actual harm in HAZMAT proceedings is for~ 

tuitous) not exculpatory). Instead, the absence ofharm is "merely fortuitous." ld 

2.3.3.3. Affirmative Defense 4 fs merittess- Respondent's corrective actions have been 

ineffectual at preventing further violations. 

Respondent presented extensive evidence of"corrective action" it has taken to prevent further 

violations. Transcript 152:5-158:16, Sealed Transcript 13:18~32:8, Exhibit R-8. 

(SEALED) The earliest violation in these cases occurred on November 1 0,_ 201 0; the latest on February 15, 2011. Exhibit R-8 helpfully lays out a tim.eline of the purported correcti~e a~tion. TIJ.e 

first seven occurred before the earliest violation in these cases and thus were not e<ffective in preventing further violations: . 

1. CST Conference Weight & Balance Workshops (July 2009) 

2. Flight Operations W &B Analysis (February 20 1 0) 

3. Cargo Load Report Online Trai.ning Course (April2010) 

4. CST Conference Weight & Balance Workshops (July 2010) 

5. Load Audit Observations (July 2010) 

6. Aircraft Loading Focus Groups (August 2010) 

27 "And it is not mitigating when a violation does not result in actual ham:J.; that is simply fortuitous.'' . 

Complainant's P.ost-Trial Brief 

ln the Matters ofSkyWestAirli.n.es, Inc. 

DMS Nos. FAA-2011-0485, 0486,-0680, -0779 

Page 12 of20 

JEFFREY M. HARPER., FAAATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1.007 
11/30/2012 08:35 4252271007 ANM7 PAGE 14/23 

7. Basic Station Training (BST) Initial Classroom Weight & Balance Trrunin,g (September 

2010) 

The next two measurers began in November 2010, around the time the earliest violation in th.ese 

cases occurred, Wld were clearly not effective in preventing the later violations: 

1. Designated Loading Agent Observations (November - December 201 0) 

2. Communication from. CS Compliance & Training (November 2010 -April2011) 

Additional measures were completed or begun before the latest violation in these cases - again 

demonstrating the ineffectual nature oftbe "corrective action:" 

L Flight Operations W&BAnalysis (January 2011) 

2. CS Regional Meetings (February 2011) 

3. Flight Operations W&B Project (February 2011) 

4. Aircraft Loading Procedures Development (January- March 2011) 

5. LAR Classroom Training & OJT (February- Apri12011) 

Of the 21 listed ro.easures, 14 didn't work. Of the remaining seven, some rehash previous efforts . ··· .. - .. ,., 

known to be ineffectual, or are not actually remedial measures: ·; '' 

1. CST Weight & Balance Training (March 2011) [Similar :measures taken at CST workshops in July 2009 and July 2010] 

2. Load Audit Report (LAR) Surveillance (lVfay 2011) [Similar measure taken in July 2010~ 

results not offered as evidence.] ~. ' ' . 

3. Flight Operations Analysis (September 2011): '~analysis ofn.i.ne FAA Weight and Balance 

LOis for Todd Emerson." [Not remedial, but prepared in anticipation oflitigation.] 

(EN9 SEALED PORTION) To be mitigating, remedial actions must "exceedO the minimum regulatory or statutory requirements ... Couective action taken by an aJ.leged violat9r that simply 

brings that person into compliance with the statutory or regulatory requirements is not considered 

in mitigation of sanction." FAA Order 2150.3B1 Chapter 7, ~ 4.m. 

Here, the "corrective action;' has not even served to bring Respondent into compliance with regulatory or statutory requirements, as Respondent committed the same reg~ato:ry violations even 

after the purported corrective action. Thus, those actions cannot serve to mitigate the proposed 

sanction. 

Complainant's Post-Trial Brief 

In the Matters ofSkyWest.Airlines, Inc. 

DMS Nos. FAA-2011-04&5, 0486, -Q680, -0779 

Pa_ge 13 of20 

JEFFREY M. HARPER, F AAATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227·1007 
11/30/2012 08:35 4252271007 ANM7 PAGE 15/23 

2.3.3.4. Affirmative Defense 5 is meritless- Although the average weight program permits use 

of approximate weights, use of an average weight program requires operators to be particularly 

vtgllant that aircraft loading is calculated using approved procedures. · · 

Advisory Circular 120-27E provides a way for an air carrier to use average weights in the air carrier's W&B program. However, in order to use average weights, an "operator must be vigilant to 

ensure that the weight and balance control program reflects the reality of aircraft loading.':28 Applying that requirement to this case, an operator must .make sure the weight and balance ofthe 

aircraft is calculated using the actual number of bags loaded onto the aircraft. Additionally, for 

medium-cabin aircraft, as here, theAC120-27E considers weight variations as small as five 

poW1ds as being significant enough to be doctunented.l9 To use average weights, an operator 

must develop a loading schedule that is typically more restrictive than the manufacturer's limits 

-because it must account for variations in weight and balance.30 The loading schedule is the 

«method for ... documenting aircraft weight and balance ... to ensure the aircraft will remain within all required weight and balance Hmitations ... " 31 Without an accurate baggage count, this insurance is lost. In sum, while AC120"27E may aJlow the use of average weights,.the baggagv, . . . ' .···- :•' 

count must be accurate- which simply did not occur in this case. 

Respondent also argues that the discrepancies were within the two-percent tolerance:. permitted in 

theAC for. carriers with a bag survey program. Transcript 109:16~112:l5.Tbis argument is mer;-

itless- Respondent docs not have a bag sur.vey program. Transcript 127:8'""10: Even'.ifRe~ , 

spondent had a bag survey program, Respondent would have been in violatioo:'df that program as 

not all of the flights were v.rithin the tolerance permitted under a bag survey program."Ttanscript 

109:16-112:15.32 , I 

2.3.3.5. Affirmative Defenses 6 and 7 are merit/ess. 

(SEALED) The sixth and seventh defenses asserted are irrelevant. A:ffirrnative Defense 6 claims 

the "inte:mal audits have sho'Wll adequate compliance levels [have] been reached." Answers; Respondent's Trial Brief, Page 8. Althongh there was evidence that audits had taken place, nowhere 

in fue record do we learn 1he results of those audits. Sealed Transcript 14-23, Exhibit R-8-

The sixth defense also claims the discrepancies are <'the product of simple human arithmetic error 

and in no way are indicative of SKYWEST's regulatory compliance disposition.'' Answers; Respondent's Trial Brief~ Page 8. Much of the "corrective actions" taken involye providing training 

28 ACl20~27E •. ~ 4.b. 

29 AC120-27E, ~ 101 (Table 1-1), Exhibit C-103 (Establishing the aircraft types at issue in these cases were 

medium-cabin). 

30 AC120-27E, ~ I05.b 

31 AC120-27E, Appendix 1, ~ 12. 

n Flight 4800 was outside the tolerance. Flight 6573 may have been outside the tolerance. 

Complainant's Post-Tria.! Brief 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FM-20ll-0485, 0486, -0680, -0779 

Page 14 of20 

JE:F.FREY M. HA'RPER, FAA ATTORNEY 

TEL: (425) 227-2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANM7 PAGE 15/23 

or changes to procedures. Exhibit R-8.33 The lack of effectiveness of these efforts indicates the 

problem isn't with training or procedures, but a deeper structural issue. Respondentls aircraft operate with a 20- to 30-r:o.inute turnaround time, which makes more precise weight and balance 

accounting "impractical." Transcript 76:2-4, Transcript 109:4-10l34 Transcript 145:11~15. 35 

These cases are not the :result of some inevitable, unavoidable human error that will never be 

eliminated as Respondent's sixth defense indicates. Rather, they are the result of an unwillingness to address what appears to be the fundamental underlying problem - short turnarounds that 

]eave insufficient time for accurate baggage couu.tin.g. . 

Respondent further claims it has "taken all necessru:y corrective actions to avoid repeated mishaps such that additional penalties are redundaJlt and will not result in any increase in safety." 

Answers; Respo:o.denfs Trial Brief, Page 9. Respondent claims to have spent $400,00036 

on corrective actions over a two~and-a-half year period, an assertion that should be given. little or no 

weight considering there was no evidence of how that fi.gure was calculated and which was presented through the testimony of an employee who does not work jn accounting for Respondent. 

Sealed Transcript 24:10-22, 32:11-13. (END SEALED PORTION) 

Respondent does not ''get a pass'' simply because the violations were a result of a mistake ("sim~ 

pl.e human arithmetic error"), the regulations prove difficult to comply with, or Respondent believes it has don~ everytlring possible to ensure compliance. Compliance with the FARs is mandatory, not precatory. Respondent asserts their actions have shown "adequate compliance levels1

' 

and that all steps have been taken to "avoid repeated mishaps.'~ The only acceptable ''adequate 

compliance lever' is total compliance37 - Respondent fell short of that standard here, 

::~:. T .. · rammg: 

Listing multiple CST Conference Weight and Balance Workshops, a Cargo Load Report OnUnc Training 

Course, Basic Station Training Initial Classroom Weight & Balance Training, LAR Classroom Training & OJT, 

Aircraft Loading Online Training Course. 

Procedural changes: 

Aircraft Loading Procedures Development, Designated Loading Agent Armband · · 4 "'Q Well, to actually use actual weight would be a little bit impractical when you're trying to move arourid a 

number of people and all their bags within, you know, short flights an.d 20- to 30-minute turnaround times. 

A I believe so." 

35 "Q Now, oftentimes because of the n.atUre of 'the regional airline business there are some very, very quick 

turnarounds, are there not? 

A There are." 

36 Over the same period., Respondent would have had gross operating revenues of at least $250 million. 

37 See FAA Order 8900.1, Volume 1.4, Chapter 1, Section 1, ~ 14-3.B. "The ultimate goal, of course, is total 

compliance. The FAA and the public can accept nothing less." 

Complainant's Post-Trial Brief 

In the Matters of Sky West Airlines, lnc. 

DMS Nos. FAA-:201 J.-0485, 0486, -0680, -0779 

JEFFREYM. :F.iARPER, FAAATTORNEY 

TEL: (425) 227-21.61. 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANM7 PAGE 17/23 

2.3.4. Multiplicity 

Complainant has charged respondent with violating 14 C.F.R. §§ 119.5(g), 119.5(1), l21.693(a), 

12l.693(c), and 121.693(d). Complainant concedes, however, that the conceptofmultiplicity 

limits the number of those violations which may be considered in detennining an appropriate 

sanction.. Thi.s case involves at least two separate violations. The test is "whether each [vjoJ.ation] 

requires proof of a fact which the other does not." Ball v. U.S., 470 U.S. 856, 861 (1985); Blockburger v. U.S., 284 U.S. 299, 304 (1932); In the Matter of James Walshl 2008 WL 926620 at 9 

(March 31, 2008); In the Mauer of Folsom~~ Air Service, Inc., 2006 WL 1316970 at 11 (May 3, 

2006) (stating that one violation that incorporates the others may not be considered as a separate 

violation for determining the amount of the sanction). 

Sections 119.5(g) and 119.5(1) are separate violations, as each requires proof of a fact the other 

does not. Section 119.5(g) provides that "'[n]o person may operate as a direct air carrier or as a 

commercial operator V\lithout, or in violation of, an appropriate certificate and appropriate operations specifications ... " Section 119.5(1) states "[n]o person may operate an aircraft under this 

part, Part 121 of this chapter, or Part 135 of this chapter in violation of an air carriel" operating .. 

certificate, operating certificate, or appropriate operations specifications .... '~ 

The _critical distinction is that 119.5(g) regulates operations as an air car.rier~ 119.5(1) regulates the 

operation of an aircraft. 

Thus, under the Blockburger test, 14 C.F.R. §§ 119.5(g) and 119.5(1) are considered separate violations for sanction purposes. This case therefore, for sanction purposes, involves at least two violations, each of which is subject to the maximum $25,000 civil penalty. The Administrator seeks 

a total penalty of $33,000-the equivalent of $16,500 per violation. 

2.3.5. Ability to Absorb Sanction 

The size of an air canier is a relevant consideration i.n detemrining the canier's ability to absorb a 

sanction; the size of the carrier goes to that ability. Sanction Guidance, Chapter 7, 'U 4.j.38 The 

Sanction Guidance table accounts for the size of the air carrier by establishing general sanction 

ranges for different sized air carriers. Sanction Guidance, Appendix B, ~ 3.c.(l). Respondent 

holds a Part 121 operating certificate~ has operating revenues of more than $1 00 million, and employs more than 1, ·soo employees. Respondent's Response to Complainant's Discovery Request, 

Requests for Admission. Tims, Respondent is a Group I air carrier. Id. For Group I air carriers~ 

published sanction ranges are: 

Minimum Sanction $2,000- $9,999 

Moderate Sanction $10,000-$18,749 

sa Paragraph 4.j. reads, in part: "Therefore, the FAA uses air carrier size as one means of ensuring a relatively 

equivalent deterrent effect on eacb air carrier that vi.olates the same FAA regulation." 

Complainant's Post-Trial Brief 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-201 ]..()485, 0486, "0680, -0779 

Page 16 of20 

JEFFREY M. HARPER, FAA ATTORNEY 

. TEL: (425) 227-2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANtv17 PAGE 18/23 

Ma'rimum Sanction $18,750- $25,000 

!d. 

Further, Respondent has admitted that it has the financial ability to pay the proposed sanctions in 

these cases. Respondent's Response to Complainanfs Discovery Req,uest, Requests for Admission. 

2.3.6. Degree of Hazard 

The Sanction Guidan.ce Table B-1 in Appendix B of the sanction guidance provides guideline 

civil penalties for U.S. Air Carriers. For "operation. contrary to ops specs,'' two guidelines ar.e 

given, one for violations amoWJting to "technical noncompliance," a second :for "likely potential 

or actual adverse effect on safe operation." There is a difference because Chapter 7, Paragraph 4.e 

of the Sanction Guidance states that the degree ofhazard presented by a violation is a factor in 

selecting an appropriate sanction. 

A discussion of the aircraft performance implications of improper loading can be found in the 

FAA \Veight & Balance Handbook. Exhibit C~4. 39 Among the potential hazards listed there are: 

• Excessive Structural Loads • Degraded Climb Perlormance 

• Reduced Range • Exceeding center-of-gravity liJnits 

• Higher takeoff speeds • Higher landing speeds 

• Longer takeoff distances • Longer landing distances 

• Reduced service ceiling 

See also Exhibit R-3, Pages 1-2.40 The safety implications where aircraft performance is worse 

than expected are clear. Respondent is aware of the effect inaccurate aircraft loading can have on 

safe operation~ as shown by the paragraph from the W &B Manual which wams of the possibility 

of "the endangerment of human life" as a result of "issues with aircraft performance and handling." Exhibit C-102. Although Complainaut acknowledges that there was no actual harm for 

the flights in question here, these types of violations unquestionably have the potential for an ad~ 

verse effect on safe operation. That none of the flights in question was operated over maximum 

allowable gross weight is merely fortuitous; the record demonstrates Flight 4451 was operated 

with a calculated weight a mere 270 pounds under the maximum gross weight-just 4~ heavy 

bags, a munber not that far removed from the number of bags counted in error on these flights. 

39 The complete manual is publica.lly available: athttp://www.faa.gov/librazy/manuals!aircraftl 

media/faa-h-8083-l a. pdf. last visited August 3, 2011. 

40 Sta.tiug "It is important that the aircraft remain within [tbe center of gravity envelope] during all pbases of 

flight .... As aircraft weight increases, enroute climb performance and maximum operating altitude decrease . 

. . . Due 1o decreased climb performance and lower operating altitudes, a higher than planned aircraft weight 

may result in a higher than planned fuel usage for the fight [sic]." 

Complainant's .Post-trial Brief 

In the Matters of SkyVITest Airlines, Inc. 

DMS Nos. FAA-2011.-0485, 0486, -0680, "0779 

Page 17 of20 

JEFFREYM. HARPER, FAAAITORNEY 

1EL: (425) 227-2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANiv17 PAGE 19/23 

ExJ1ibit R-3, Page 11. Thus, the second guideline (applying to matters with "likely potential or 

actual adverse effect on safe operation" [Emphasis added]) is the appropriate sanction guideliJJe 

to follow. 

The sanction. range provided for '¢Operation contrary to ops specs~ likely potential or actual 

adverse effect on safe operation" is listed as "Moderate to Maximum. Sanction Guidance, Appendix B~ Figure B-1-c(3). The middle of this range, which provides the starting point for determining an appropriate sanction, is $17,500 per violation.41 Sanction Guidance, Appendix B, 

~ 3.c. 

2.3.7. Violation History 

As described above, Respondent has a substantial violation history for violations relating to improperly loaded aircraft. A history of violations is among the factors examined by the Agency in 

determining whether a given violation. should be aggravated or mitigated for sanction purposes is 

the Respondent's violation history. Sanction Guidance, Chapter 7, 1 4.h. A violation history is 

considered to be aggravating. particularly where, as here, the violations involve the same or similar regulations and are factually similar.ld. at~ 4.h.(a). A short period of time between the violations is also aggravating.Jd. 

Respondent has paid civil penalties in eight FAA cases involvmg improperly documented baggage and cargo for flight :relating to flights conducted between December 2008 and September 

2009. However, only two of the previous Orders may be used to establish a violation history as 

an aggravating matter in determining an appropriate sanction. 42 Although the other civil penalties 

may not be considered as establishing an aggravating. violation history, they do demonstrate the 

ineffectiveness of the pUiported corrective action taken by Respondent, as discussed in. Section 

2.3.3.3 above.43 

The repeated and ongoing natu.re of the violations is evidence that the sanctions historically im.-

posed have not had a deterrent effect. Subsequent sanctions should be a deterrent to future violations; a penalty should represent a sanction greater than simply a cost of doing business. 

41 The bottom of the moderate range for a Group I air carrier is $10,000, the top ofthe maximum range for a 

Group I air carrier is $25,000, the middle ofthe range is found by ($10,000 + $25,000)/2:::::; $17,500. Sanction 

Guidance, Appendix B, ~ 3.c.(l). 

42 The Orders in the other cases were not issued until after November 17, 2010 (when the flight in question in 

this case took place). Chapter 7, -,r 4.h(2) of the Sanction Guidance provides that a case must be finalized be~ 

fore it can be considered as a violation history. Thus, those flights were not considered to be aggravating in 

these cases. 43 Corrective action is a factor used in determining au. appTOpr.i.ate sanction. FAA Order 2150.3B, Chapter 7, 

~ 4.m. 

Complainant's Post-Trial Brief 

In tbe Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486,-0680,-0779 

Page 18 of20 

JEFFREY M. HATU'ER, FAAATTORNEY 

TEL: (425) 227-2161 

FAX: (425)227-1007 
11/30/2012 08:36 4252271007 ANfv17 PAGE 20/23 

2.3.8. Sanction-Conclusion 

The Administrator's requested sanction in this case is neither arbitrary nor capricious. It is within 

the range publisbed by the Administrator in the Sanction Guidance. In fact, it is less than the 

middle of that range, which is taken to be the starting point of any determination. o:f sanction and 

indicative of the mitigating factors taken into consideration by the Agency. It is neither unwarranted in law nor \:vi.thoutjustification. i.n fact. Accordingly, the Administrative Law Judge should 

deferto the Administrator's selection of sanction under NLindustries, Inc., 901 F.2d at 144, and 

enter an Order assessing the full penalties sought in the Complaints. 

3. Conclusion 

The violations alleged in 1hese cases occurred. Respondent did not know how much baggage was 

loaded on its aircraft. The requested sanction is neither arbitrary nor capricious; it comports with 

the Administrator's Sanction Guidance. Complainant asks that the Administrative Law Judge 

find the violations occurred and affirm the sanctions sought in these cases. 

Respectfully submitted this 30th day ofNovember, 2012. 

1\A.Attomey 

JMR/ds 

Complainant's Post-Triall3rief 

In the Matters of Sky West AirJ ines, Inc. 

DMS Nos. FAA-20ll-0485, 0486,-0680, ·0779 

Page 19 of20 

JEFFREY M. HARPER, FAA ATTORNBY 

TEL: (42.5) 227-2161 

FAX: (425) 227-1007 
11/30/2012 08:35 4252271007 ANt·,.17 PAGE 21/23 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Post-Trial Br.iefhas been served via facsimile an.d Certified 

Mail- Retum Receipt Requested this date, to the following: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor., Rr.n El2-320 

Washington, D.C. 20590 

TEL: (202) 366-2139 

FAX: (202) 366-7536 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Federal Aviation Administration 

800 Independence Ave. SW. 

Washington, DC 20591 

FAX: (202) 493-5142 

Todd Emerson, Esq. 

Sky West Air.lines · 444 S. River Road 

St. George, UT 84 790 

TEL: (435) 634~3530 

FAX: (435) 634-3505 

Michael Dworkin, Esq. 

Michael L. Dworkin and Associates 

465 California Street 

San Francisco, CA 941 04 

TEL: (415) 421-2500 

FAX: (435) 421-2560 

DATED this 30th day ofNovember, 2012. 

Complainant's Post-Trial Bri.ef 

DanastepbellS011 [)AI~ 

Office ofRegional Counsel (ANM-7) 

Federal Aviation Administration 

1601 LindAve. SW 

Renton.~ WA 98057 

(425) 227-2164 

Jn tbe Matters of Sky West Airlines, Iuc. 

JEffMY M. HARPER, F AAATTORNEY 

TEL: (425) 227"2161 

DMS Nos. FAA-201.1-0485, 0486, -0680, -0779 FAX: ( 425) .227 ~ l 007 

Pasz:e 20 of20 
11/30/2012 08:35 4252271007 

JEFFREY HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND AVENUE SOUTHWEST 

RENTON, WASHINGTON 98057 

TELEPHONE: (425) 227-2161 

FACSIMILE: (425) 227·1007 

ANM7 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

ln. the Matters of: 

FAA Case No. 2011NM060011 

DMS No.: FAA-2011-0485 

FAA Case No. 2011NM060010 

DMS No.: FAA-2011-0486 

SkyWest Airlines, Inc. FAA Case No. 2011NM060033 

DMS No. FAA-2011-0779 

FAA Docket No. CPllSWOOOO 

Honorable Richard C. Goodwin 

Declaration 

(Confidential Order) 

I have read the administrative law judge's Order of August 10, 2012, granting Respondent a 

Confidential Order. Per paragraph 3(d) of that Order, I agree to be abide by its terms. 

Jk t . 4 

. ana :ud~~ Stephenson 

PAGE 22/23 
• 

11/30/2012 08:35 4252271007 ANM7 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Declaration has been served via facsimile and Certified 

Mail - Return Receipt Requested this date, to the follo'Wing: 

The Honorable Richard C. Goodwin 

Office ofHearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor~ Rm E12-320 

Washington, D.C. 20590 

TEL: (202) 366-2139 

FAX: (202) 366-7536 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Federal Aviation Administration 

800 Independence Ave, SW. 

Washington, DC 20591 

FAX: (202) 493~5142 

Todd Emerson., Esq. 

Sky West Airlines 

444 S. River Road 

St. George, UT 84790 

TEL: (435) 634-3530 

FAX: (435) 634-3505 

Michael. Dworkin, Esq. 

Michael L. Dwor!Gn and Associates 

465 California Street 

San Francisco, CA 94104 

TEL: (415) 421-2500 

FA..-'X: (435) 421-2560 

DATED this 30th day ofNovember, 2012. 

ci!li{g~df27;~ Dana Stephenson 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

(425) 227-2164 

PAGE 23/23 

:O~claration .TEFFR.EY M. HARPER, FAA AJ:TORJ:'mY. 

Sky West Airlines 

DMS Nos. FAA-2011-0485, FAA-201 l-0486, FAA-20ll-0779 

Pagc2 of2 

TEL; 425.227.1417; FAX: 425.227.1007