U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION 

# RECEIVED

FEDERAL AVIATION ADMINISTRATION ) ) ) 

## NOV 19 2015 

## HEARING DOCKET
Complainant,

v.
SKYWEST AIRLINES, INC. Respondent. ) ) Docket Nos. 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; FAA-2013-0617; FAA-2013-0619 

### _______________________) BRIEF OF RESPONDENT/APPELLEE SKYWEST AIRLINES, 

### INC. The Respondent, SkyWest Airlines, Inc. ("Respondent" or "SkyWest") hereby files its Responsive Appellee Briefrequesting that the Initial Decisions issued byAdministrative Law Judge Richard C. Goodwin (the "ALJ") in the above-captioned consolidated matters be upheld and affirmed. 

### I. INTRODUCTION The Federal Aviation Administration ("Complainant" or "FAA") seeks a civil penalty of $40,000 per flight arising from 14 flights for whichramp workers allegedly made minor mistakes in counting bags or recording other information on forms filled out during the loading process. Each ofthe events was the result ofpure human error and none resulted in a single aircraft being operated outside ofacceptable performance parameters. None ofthe mistakes
were intentional, and the FAAhas not alleged that they were anything other than inadvertent
errors. In fact, the ALI made no finding in any ofthe consolidated cases ofdeliberate acts involving intentional misconduct, disregard ofprocedures, orknowingly using inaccurateloading data. Rather, each event was a prototypical example ofaninadvertent, technical violation in which no safety risk arose. The ALJ properly imposed civil penalties consistent with the factual findings he made. In pursuing these consolidated actions, the Complainant is, as a practical matter, attempting to impose what amounts to strict liability on Sky West for every single miscounted bag, thus pursuing a draconianpenalty regime that flies directly inthe face ofthe FAA's compliance philosophy. Itis also contrary to the buffers- acceptable margins oferror with respect to bag counting and weight allowances

- that the FAA affords other carriers and has refused to afford Sky West. Perhaps even more troubling, the Complainant repeatedly mischaracterizes these matters by contending that Sky West failed to follow its procedures. The truth, as demonstrated by the undisputed facts, is that, although Sky Westfollowed its procedures, each ofthese matters arises from simple human error: ramp workers making mistakes in filling outthe form used to tally loads. Each such mistake had a de minimis impact, as demonstrated by the fact that each flight
was operated in accordance with the aircraft's weight and balance limitations and operational requirements. Moreover, in deriving its proposed civil penalty the FAA disregarded evidence of mitigating factors and corrective actions that Sky West implemented. The ALJ correctly determined the appropriate civil penalty based on the totality ofthe circumstances, sanctions guidance, precedent, and policy. The Complainant's appeal should be denied. U. BACKGROUND A. FACTS SkyWest is a regional airline that provides scheduled air service throughout the United States. Itoperates an average ofover I,700 flights per day. At some stations, notably Chicago O'Hare, Denver, and Minneapolis, ramp activities for SkyWest flights (including the loading of baggage and cargo) are conducted bypartner airlines.

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### These consolidated matters arise from the loading ofSky West aircraft on 14 flights
over an eight-and one-halfmonthperiod in 2011. The operative fact central to each case involves the recording ofitems loaded onto aircraft by ramp workers on forms known as Cargo Load Reports ("CLRs"). From the testimony ofthe FAA inspectors who observed the offloading ofbaggage on these flights, no dispute exists that the amounts ofbaggage offloaded differed from what was recorded onthe flight crews' copies ofthe CLRs. These discrepancies were the product ofhuman error. The ramp workers who filled outthe CLRs followed approved procedures, but made mistakes. The FAA made no allegations in any of the consolidated cases ofintentional or reckless acts or omissions relating to the recording of loading data on CLRs. The Complainant did not introduce evidence or attemptto argue thatthe mistakes made on CLR entries were caused by anything other than inadvertent oversights. Like most carriers, SkyWest uses an FAA-approved standard average weights program, as reflected in Sky West's Weight & Balance Operations Manual, Special Procedure [SP]4100 (the "W &B Manual"). 1 

### Sky Westis authorized to use average weights for passengers, carry-on personal items, planeside loaded items, and checked baggage under Paragraph A098 ofits Operations Specifications ("OpSpecs"). An 

### average weights program relies on estimates. As explained by the FAA inAdvisory Circular AC 120-27E,Aircraft Weight & Balance Control: 

### For many years, operators oftransport category aircraft have used average weights for passengers and bags to calculate an aircraft's weight and balance, in accordance with standards and recommended practices. This method eliminates many potential sources oferror. ... However, differences betweenthe actual weight ofpassengers and bags and the average weight ofpassengers and bags can occur when using average "gh 2 

### wet ts.

Exhibit R-1-1. 2 

### FAA, Advisory Circular AC 120-27E, Aircraft Weight & Balance Control 

### (Jun. 10, 2005) ("AC 120-27E"), at 15.

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-The average estimated weights assumed for baggage loaded pmsuantto SkyWest's program include:
• Standard checked bags and planeside-loaded items and standard bags: 30 pounds per item; • Heavy checkedbags: 60 pounds per item, even though "heavy" bags are defined as any bag weighing more than 50 pounds, but less than 100 pounds; and • Live animals: 30-60 pounds per anima1. 3 Under this program, it is noteworthy that, although carry-on items (including items placed inthe overhead bins) are assumed to have zero weight, ifany such itemis for any reason removed from
an overhead bin and placed inthe cargo hold, it is then given an assumed weight of30 pounds. Thus, a carry-on item that would fit in the overhead bin ofone ofSkyWest'sregionaljets and given a zero weight would be given a 30-pound weight on an EMB-120 Brasilia because the overheadbins on the Brasilia are considerably smaller than those on the other aircraft.4 Therefore, under its standard average weights program, SkyWest could follow its procedmes to the letter and still notknow the actual weight ofan aircraft, due to the estimates applied. This outcome is not a problem that indicates a violation, butrather is inherent in the natme ofthe FAAapproved procedme. SkyWest's W&B Manual instructs loading personnel to record on the CLRthe total number ofstandard checked, heavy checked, and planeside valetbags, live animals and other items such as company materials ("COMAT"), ballast, and freight loaded onto the aircraft. This is a manual process and ground personnel are encouraged to use a tally stroke sheet onthe
reverse side ofthe CLR. 5 Scanners, originally designed to track movement ofbaggage through the system, are also used (depending upon which codesharing carrier is loading the aircraft and

3 4 5 See R-1-1, SkyWest W&B Manual, at 3-9. See Tr. 378:21-380:6. Tr. 395:4-10.

- 4-counting bags). 6 Although the CLR (which is prepared in duplicate, i.e., originating station copy and flight crew copy) is supposed to reflect baggage and cargo loaded onto the aircraft, procedures exist for last minute changes after the CLRhas beenprepared, and no modification
or amendment ofthe CLR is required ifverbally authorized by the flight crew. In all buttwo instances (Flights 6756 and 6991 in FAA-2012-0872/2011NM060047), the CLRs offered as evidence by the FAA are flight crew copies. Withthese two exceptions, the FAA did not request the preservation ofthe originating stations' CLRs, and the station copies of CLRs were destroyed inthe ordinary course ofbusiness, as they are required to be retained for only one day. Station copies ofCLRs would most likely have reflected any modifications or amendments, and the reverse sides ofthe station copies wouldhave had the tally sheets showing how loaded items had been counted. 7 The Respondent admitted that discrepancies were found betweenthe FAA inspectors' counts ofoffloaded items and what had beenrecorded on 12 ofthe 14 CLRs. On one CLR, there
was also one simple 30-pound arithmetic error in computation ofCOMAT weight. However, for each ofthe 14 flights, the weight discrepancies were de minimis. The undisputed evidence showed that weight discrepancies between what was recorded onthe CLRs and what the FAA inspectors computedranged from 0 to 390 pounds (with the vast majority being inthe 30-120 pound range).

6 Tr. 395:16-396:1. 7 FAA Inspector Steven Allen did not think it was necessary to obtain station copies. Tr. 33:20. When asked what was on the reverse side ofthe station copy ofthe CLR, Inspector Adam Perkins testified that there was a "formatto help the ramper count the bags" (Tr. 76:1-12.), because "itwould be easy to lose track in your head. Itgives him a way manually to keep track ofbags as they go on the airplane." Tr. 76:5-8. Even Principal Operations Inspector Andrew Ayers testified that itwould have been beneficial for the FAA to have obtained the station copies ofthe CLRs, with the tally sheets, to see how the loadingpersonnel came up with their count. Tr. 210:4-211:4. Yet, only one FAA inspector investigating two flights obtainedthe station copies ofthe CLR, and, in one ofthe cases, it showedthatthere was no violation. See Exhibit R-21.

- 5-Carl Salamone, an engineer, pilot, and flight instructor, was received bythe ALI as "an expert in the field ofcalculation ofaircraft weight and balance and the effects ofthat weight and balance onperformance." 8 He reviewed weight and balance information for each ofthe 14 flights at issue and concluded that none ofthe flights exceeded maximumtakeoffweight and
none ofthe flights were unsafe in any way.9 He also took into account the additional weights observed by FAA inspectors that were not accounted for in the applicable CLRs, and concluded that none ofthe flights were in excess ofmanufactmer limitations for takeoffweight, center of gravity, runway performance, climb performance, or maximum operating altitude. 10 Thus, it is undisputed that each ofthe flights atissue was operated within weight and balance limitations and applicable operational envelopes. The record contains no evidence of any safety issues arising from these events. 

### B. SKYWEST'S CORRECTIVE ACTIONS SkyWest introduced extensive evidence ofits substantial corrective actions to prevent human error in the loading process, including, among other things, enhanced initial andrecurrent training; annual weight and balance workshop conferences; self-audits to ensme compliance; online CLRtraining courses; focus groups conducted with frontline agents to better understand where potentials for error exist; better coordination with contract stations and codesharing carriers handling SkyWest's aircraft loading; manual, policy and procedure revisions; and working with other carriers and the FAAto design industry-leading training and standardization

8 See, e.g. Initial Decision ofAdministrative Law Judge, In the Matter of SkyWest Airlines, DocketNo. F AA-2012-0872 (Jul. 16, 2015) ("'nitial Decision in FAA-2012-0872") at 24. 9 Jd. at 26. 10 Id.

- 6-ofground operations- all with the objective ofimproving accuracy and reducing the likelihood ofhuman error11 These actions reflected continuous, longstanding efforts to achieve improvements dating back to 2009, but also included numerous corrective actions that Sky West took in2011 and 2012. These later actions included, inter alia, the following:
• A Flight Operations Audit Team special project to analyze weight and balance processes and then develop an amendment to SkyWest's procedures that the airline presented to its CMO in March 2011; • Implementing classroom and online training courses for ground personnel about aircraft loading, weight and balance procedures, and compliance; • Working with mainline partners that handle baggage loading to develop standardized procedures that the partners would follow when loading SkyWest aircraft; • Conducting surveillance and analysis ofloading procedures; • Developing newprocedures and responsibilities for a "Designated Loacling Agent" position, a single personresponsible for the loading ofeach aircraft and who would wear an armband so as to be visible to flight crews and other ground personnel; and • Doubling the time ofinitial classroom training given to newhires about aircraft loading procedures, filling out CLRs, heavy bag determinations, and weight and balance issues. 12 SkyWest made substantial efforts to collaborate with the FAA to ensure that its weight and balance program and baggage/cargo loacling procedures were sufficient. 13 The ALI found that, withrespect to addressing weight and balance issues, "Sky West was cooperative and responsive to FAA concerns," and the "FAAhad a cooperative working relationship with SkyWest." 14 The ALI also found that:

II 12 See, e.g., Exhibits R-6-l, R-6-2, R-7, and R-8. See Exhibit R-6-1 at 2-4. 13 The FAA's Salt Lake City Certificate Management Office (CMO) participated in SkyWest's efforts. Representatives ofthe CMO attended and participated in SkyWest's weight and balance training and never statedthat it was insufficient or ineffective. SkyWest had periodic teleconferences with its CMO to ensure SkyWest's compliance efforts were satisfactory, and the FAA never offered even a hint that SkyWest's actions were insufficient in any respect. 14 Initial Decision in FAA-2012-0872 at 42.

- 7-Once notified ofthe violations, SkyWest took swift, comprehensive corrective action including implementation ofan SMS after the 20 II

. 'd 15 met ents.... Sky West is an industry leader with respect to SMS. In order to ensure that the airline remains at the forefront ofsafety, SkyWest voluntarilyjoinedthe FAA's SMS PilotProject in 2010. In 20II, SkyWest conducted a companywide audit to identify any gaps betweenthe requirements ofSMS and the processes being used in each department. These activities eventually culminated in detailed SMS processes for each departmentbeing fine-tuned and memorialized inthe airline's SMS manual and various training instruments. The amended loading and weight and balance procedures the airline presentedto the FAA in 20 II were developed in concert with, and applied the principles of, Sky West's robust SMS program. 16 

### C. THE FAA'S ATTEMPT TO GET ANOTHER BITE OF THE APPLE Each ofthe flights at issue in the actions consolidated for appeal predate an October 2, 2012 hearing and Initial Decisions ofMay2, 2013 inDocket Nos. FAA-2011-0485, FAA-2011- 0486, and FAA-2011-0680/0779. In those cases, the FAA alleged violations ofthe same regulations here under analogous facts and sought civil penalties inthe amount of$33,000 per flight. In his Initial Decisions inthe prior cases, the ALJ determined, inter alia, that the FAA failed to prove violations of 14 C.F.R. 

### § 121.693, concluded that penalizing SkyWest for violations of 14 C.F.R § 119.5(g) and 119.5(1) would be "unjustified," and found that one civil penalty in the amount of$250 per flight was appropriate. 17 The FAA did not appeal the May 2, 2013 Initial Decisions. Instead, inthe actions consolidated inthis appeal, the Complainant seeks

15 !d. at43. 16 See Exhibit R-5-1. 17 By Order served May 5, 2014, the ALJ granted SkyWest's April18, 2014 Request for Judicial Notice, which included the May 2, 2013 Initial Decisions. See Item I.a.

- 8-even greater penalties for substantially identical cases that arose contemporaneously with the prior ones, ignoringthe ALJ's prior fmdings. Where the Complainantpreviously sought penalties of$33,000 per flight, it now seeks penalties of$40,000 flight. 

### D. THE.FAA'S REFUSAL TO PERMIT SKYWEST TO APPLY THE SAME LOADING BUFFERS AS OTHERAIRLINES Inan effortto address and minimize the interplay ofhuman factors inthe baggage loading and counting process, Sky West attemptedto obtain FAA approval ofa modification to its weight and balance program, similarto that whichthe FAApreviously approved for other airlines. 18 The amendment wouldpermit small variances inbaggage counts as necessitated by operational considerations. 19 The modification specificallytook into account the FAA's HumanFactors Policy and included SMS practices.Z0 The FAAhas allowed at least one other airline to apply a 20-bag/600-pound "cushion," i.e., margin for error, withrespect to tallying the loading ofits aircraft. 21 SkyWest had requested something considerably more restrictive than that.22 Despite Sky West's showing ofanequivalent level ofsafety, the FAArefused to permit Sky West to amend its programto address humanperformance issues. 23 Instead, the FAA chose to pursue a series ofenforcement actions. The FAA's position is particularly unreasonable in light ofthe fact that it does notrequire the airlines thathandle bag loading for Sky West at major hub airports to obtainperfect bag counts. SkyWest operates approximately 135 flights/day at O'Hare, 132 flights/day atDenver, ]8 19 20 21 22 23 See Exhibit R-4. See Exhibits R-5-1 through R-5-7. See Exhibit R-5-1. See Exhibit R-4. See Testimony ofChristopher Brown, Tr. 303:15-309:19. See F AA-2011-0485/0486 and FAA-2011-0779, Tr. 112:19-22; 113:1-17. The Complainant erroneously characterized SkyWest's communications with the FAA as a request for exemption under FAR Part 11, which they were not. All that was requested was arevision to its weight and balance program to address human factors, which the FAA refused to allow.

- 9-and 95 flights/day at Minneapolis where ramp personnel employed by other airlines- United and Delta-loadbags and complete CLRforms for Sky West flights. Sky Westunderstands that these other airlines are afforded buffers withrespectto bag counting. Thus, the FAA expects the ramp workers to make perfect bag counts every time they load a Sky West flight, while permitting the
same workers to make counting errors when they loadbags for other airlines. 

### E. THE ALJ'S FINDINGS In each ofthe consolidated cases, the Complaint alleged thatRespondent had violated the following sections of 14 C.F.R. §§ 119.5(g) (operating as an air carrier in violation ofOpSpecs); 119.5(1) (operating an aircraft under Part 121 in violation ofOpSpecs); and 121.693(a), (c), and (d) (pertaining to contents ofload manifests). In a series ofwritten Initial Decisions dated July 16, 2015, the ALJ held that Complainant failed in each ofthe cases to make aprima facie case thatRespondent violated 14 C.F.R. §§ 121.693(a), (c), and (d). He found that Respondent violated 14 C.F.R. §§ll9.5(g) and (1) in connection with 13 ofthe flights atissue. In case number FAA-2012-0874, the ALJ found that the FAA failed to prove any violations withrespect to Flight 4540 because the Complainant did notproperly identify the aircraft that operated the flight in its complaint. 24 In determining the penalty amount, the ALJ expressly applied the framework ofFAA's sanction guidance, Order 2150.3B, to the undisputed facts. He determined that a civil penalty of $250 per flight was more appropriate than the $40,000 per flight amount sought by the

24 See Initial Decision ofAdministrative Law Judge, In the Matter of SkyWestAirlines, FAA-2012-0874 at 43 ("Failure to properly identify the aircraft operated cannot constitute a violation."). For purposes ofthis appeal, SkyWest acknowledges that, notwithstanding the mistakes the FAA made in its complaint, ithad notice in case FAA-2012-0874 ofthe aircraft that operated Flight 4540. Unlike the Complainant, SkyWest recognizes that simple human errors happen, and does not contestthe Complainant's appeal on the issue ofwhether SkyWest violated 14 C.F.R. §§!19.5(g) and (I) by operating Flight 4540. With respect to this flight, SkyWest takes the position that a single penalty of$250 is the appropriate sanction, consistentwith the ALJ's findings with respect to the other flights at issue.

- 10-Complainant because "the evidence and testimony did not support the penalty requested."25 The ALJ made the following findings, which, inter alia, formed the basis ofhis determination that a civil penalty inthe amount of$250 per flight was warranted:
• SkyWest was "cooperative and responsive to FAA concerns";
• The FAA "had a cooperative working relationship with SkyWest";
• Once notified ofthe violations, "SkyWest took swift, comprehensive corrective action including implementation ofSMS after the 2011 incidents";
• The violations "were technical innature";
• The violations "hadno material effect on weight and balance or on aircraft performance";
• Sky West showed that "in no instance was safety offlight at even the slightest risk";
• The FAA "failedto show for any ofthe flights that SkyWest failed to follow the scheme in its Weight & Balance Manual in deriving its load manifests"; and
• The evidence "showed that Sky West's load manifest calculations were in accordance with its OpSpecs and Manual instructions in every instance."26 The ALJ also declined to penalize SkyWest for violations ofboth §119.5(g) and §119.5(1). He reasoned that, because the two sections were "not significantly different," penalizing SkyWest for bothviolations would be "unjustified." Inreaching this conclusion, the ALJ specifically referenced FAA's sanction guidance, Order 2150.3B, and its statement of policy that the FAA ordinarily does not compound a sanction where a single instance of noncompliance results inmultiple violations.Z7

25 26 27 See, e.g. Initial Decision in FAA-2012-0872 at 43. Id. at 42-43. Id. at 44.

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-The ALJ concludedthat, under the circumstances presented, a single civil penalty of $250 perviolation "appropriately accounts for the factors the statute and FAA policy directs in fi . h

**,~8**

1xmg t e assessment. · III. ARGUMENT The civil penalty sought bythe Complainant is grossly excessive in light ofthe totality of circumstances. As found bythe ALJ, each ofthe events at issue arose from simple human error in counting bags and/or filling out CLR forms. The arguments in Complainant's briefare founded on an attempt to draw a false equivalence between discrete instances ofhuman error and the wholesale disregard ofprocedures by an airline and its personnel. Although the Complainant maynot like the facts presented, it is inappropriate for the FAA to twist them for result-oriented purposes. If, for example, an airline was not bothering to require ramp workers to count bags or was simply making up numbers plucked from thin air to record on CLRs, those would be examples ofan airline failing to follow procedures. Here, no evidence exists ofany such actions. Inadvertent mistakes byindividual ramp workers who are following procedures are not the same thing as a wholesale failure to follow procedures. The FAA's attempt to impose a $40,000 per flight civil penalty onthe facts presented is directly contrary to its compliance philosophy, which includes the following principles set forth in Order 8000.373:

28 29 The FAA recognizes that some deviations arise from factors such as flawed procedures, simple mistakes, lack ofunderstanding, or diminished skills. The Agency believes that deviations ofthis nature canmost effectively be correctedthrough root cause analysis and training, education or other appropriate improvements to procedures ortraining programs for regulated entities, which are documented and verified to ensure effectiveness. 29
Id FAA Order 8000.373, FederalAviation Compliance Philosophy, at 2 (Jun. 26, 2014). This Order also states that "reluctance or failure in adopting these methods to remediate deviations or (Continued
...)

- 12-This philosophyis mirrored in Order 8900.1, as follows: Ifthe deviation does not involve intentional, reckless, or criminal behavior and the airman/organization is qualified and willing to cooperate, AFS should resolve the issue through use ofcompliance tools, techniques, concepts, and programs30 Here, the FAA did not allege that any intentional, reckless or criminal behaviortookplace. The ALJ found that SkyWest was "cooperative and responsive to FAA concerns" and took "swift, comprehensive corrective action" once itwas notified ofthe violations? 1 Nevertheless, the FAA is attempting to, in essence, impose strict liability on Sky West for every single miscounted bag. The FAA's own compliance philosophy does not support this approach. 32 Moreover, in each ofthe flights at issue safety offlight was neither affected nor compromised. As explainedbyunrefuted expert testimony, any weight discrepancies causedby the inadvertent miscounting ofbags were de minimis and had no effect onthe weight, balance, performance, orhandling ofthe aircraft. These cases are the product ofbasic humanfactors

- simple human errors in counting and arithmetic. The standard ofreviewin any appeal from an ALJ decision is whether: (i) each finding offact is supported by a preponderance ofreliable, probative, and substantial evidence; (ii) each
instances ofrepeated deviations might result in enforcement." Id. These circumstances were not found to be present here. The ALJ expressly determined that "[o]nce notified ofthese violations, Sky West took swift, comprehensive corrective action including implementation ofan SMS after the 2011 incidents
...." See Initial Decision in FAA-2012-0872 at 43. 30 FAA Order 8900.1, Vol. 14, Ch. 1, Sec. I (Flight Standards Service Compliance Philosophy) (eff. Oct. I, 2015), at 4. See also id. at 7 ("Human beings commit errors. Even the most dedicated professionals can inadvertently drift from full compliance with policies, processes, and procedures due to complacency or shortcomings in the larger systems in which they work
.... To address the risk ofhuman error, an airman or organization must account for the inevitability of human error through effective safety barriers and risk controls that focus on prevention, detection, and the mitigation oferror consequences on the NAS."). 31 Initial Decision in FAA-2012-0872 at 42, 43. 32 See also Order 2150.3B at 5-2 ("A failure to implement agreed-upon corrective action differs from implementing agreed-upon corrective action that does not achieve its intended purpose. In the latter case, further corrective action may be appropriate.").

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-conclusion oflaw is made in accordance with applicable law, precedent, and public policy; and (iii) the ALI committed any prejudicial errors that support the appeal. 33 Here, the ALI was well within his discretion to reach the conclusions inhis Initial Decisions based on the facts presented. All ofthe ALI's legal conclusions were in accordance with applicable law, precedent, and public policy, and the Complainant has not shownthat the ALI committed any prejudicial
errors. Accordingly, the ALI's opinions should be sustained. 

### A. THE ALJ DID NOT ERRIN REFUSING TO FIND VIOLATIONS OF 14 C.F.R. §§121.693(a), (c) & (d). The ALI concluded that, based onthe facts ofthe consolidated cases, Sky West did not violate 14 C.F.R. §§121.693(a), (c) and (d). Applying the plain language ofSection 121.693 to the facts makes it apparentthatthe ALJreached the correctresult. In each ofthe cases the flight
crews prepared load manifests in accordance with the SkyWest W&B Manual, andthere is no allegationthatthey did not include the information onthe manifests required bythe manual or the applicable regulations. The ALI's reasoning was sound and his conclusions should be sustained. Section 121.693 states in its stern thatthe "load manifest must contain the following information concerning the loading ofthe aircraft at takeofftime" and then identifies the required information in subsections. Subsection (a) lists "the weight ofthe aircraft, fuel and oil, cargo and baggage, passengers and crewmembers."34 It is undisputed that the load manifests preparedfor the flights at issue contained "information concerning" the "weight ofthe aircraft, fuel and oil, cargo and baggage, passengers and crewmernbers" at takeofftime. Therefore, the Complainant did notprove that Sky West violated Section 121.693(a).

33 34 See 14 C.F.R. § 13.233(b). 14 C.F.R. 

### § 121.693(a).

- 14-Subsection (c) lists "[t]hetotal weight computed under approved procedures."35 Itis undisputed that the load manifests contained total weights computed using Sky West's procedures. That some total weights reflected on load manifests may have been inaccurate due to inadvertent errors made in preparing CLR forms is a separate matter. Ifa pilotpreparing a load manifest computed total weightbased onthe information on a CLR, and (unbeknownst to the pilot) the CLR contained a mistake, this does notmean that the pilot did not follow approved procedures inpreparing the load manifest. Rather, in relying on the CLR, the pilot followed the approved procedure in computing weight. Attrial the Complainantpresented no evidence that the people who prepared the load manifests did not follow the approved procedures for computing the total weights indicated onthe manifests. Therefore, the Complainant did not prove that SkyWest violated Section l21.693(c). The same analysis applies withrespect to alleged violations ofSection 121.693( d). Section (d) lists "[e]videncethat the aircraft is loaded according to an approved schedule that insures that the center ofgravity is within approved limits."36 The Complainant made no allegation that the load manifests in question did not contain the "evidence" called for by Section (d). Ifa pilot completing a load manifestrelied on a CLR that contained some inaccurate data, this does notmeanthatthe load manifest did not contain evidence that the aircraft was loaded according to an approved schedule. Indeed, there is no evidence that any ofthe load manifests for the flights atissue indicated that the center ofgravity was not within limits. As the Complainant concedes, it is undisputed that each ofthe aircraft was operated with a center of gravity within approved limits. The ALI described the unrebutted testimony ofSkyWest's expert in the field ofweight and balance with respect to each ofthe flights at issue as follows:

35 36 14 C.P.R.§ 121.693(c). 14 C.P.R.§ 121.693(d).

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-[G]iven the weights that the crews had recorded and believed that they were operating under, none ofthe flights exceeded maximum takeoff weight and none ofthe flights were unsafe in anyway. 37 Moreover, "taking into account the additional weights observed by the FAA inspectors, none of the aircraft exceeded tolerances nor were the flights unsafe." 38 This outcome was notindicative offortuity, as the Complainant argues. Rather, it demonstrates the de minimis nature ofthe mistakes that were made inpreparing CLRforms. The Complainant did not prove that Sky West violated Section 121.693(d). In the cases on appeal, the ALJ correctly determined that, based on the evidence presented, SkyWestfollowedthe requirements in§§ 121.693(a), (c), and (d). As he explained: SkyWest computed its load manifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to follow the Manual. The load manifest, then, used approved procedures to compute the weight ofthe baggage. No violation of§§ 121.693(a) and (c) thus could be proven. Nor was a§J21.693(d) violation proven; no evidence tended to demonstrate that the approved method failed to insure that the center ofgravity was within approved limits. 39 Inthis straightforward manner, the ALJ applied the language ofthe regulations thatthe FAA alleged were violated to the facts presented. In contrastto the ALI's straightforward approach, the Complainanttries to obfuscate the appropriate analysis. The Complainant attempts to import an "accuracy" requirement from 14 C.F.R. § 121.665 into § 121.693. However, Section 121.693 does not address the "accuracy" of the load manifest, butrather, as it states onits face, identifies the types ofinformation that a load manifest must contain. Section 121.665 addresses different matters, as follows:

37 38 39 Each certificate holder is responsible for the preparation and accuracy ofa load manifest form before each takeoff. The form mustbe prepared and signed for each flight by employees ofthe certificate holder who have the Initial Decision in FAA-2012-0872 at 26. Id. Jd. at 34-35.

- 16-duty ofsupervising the loading ofaircraft andpreparing the load manifest forms or by other qualified persons authorized by the certificate holder.40 The drafters ofthe regulations could have used the term "accuracy" in§ 121.693 ifthey chose to, butthey did not. They could have indicated that§ 121.665 should be read into§ 121.693, but they didnot. 41 The two provisions are distinct. Moreover, the term "accuracy" is in this context canhave variable meanings. The Complainanttakes pains to argue that SkyWest is a violator because the actualweights on load manifests did not match the actual weights ofcargo loaded onto aircraft42 However, Sky West
uses anFAA-approved average baggage weight program. Under this program, the actual weights ofbags are not used in computing the information on the load manifest. As the FAA itselfrecognizes, "differences betweenthe actual weight ofpassengers and bags and the average weight ofpassengers and bags can occurwhenusing average weights."43 Thus, if"accuracy"
means exactprecision corresponding to the actual load ofthe aircraft, the load manifest will
never be "accurate." Withrespect to a standard average bag weight program, the Complainant argues that "accuracy" on a load manifest refers to a bag countthat results in a weight that is accurate relative to the total loading ofthe aircraft. 44 The Complainant cites no authority for this

40 14 C.P.R. §121.665. 41 The history ofPart 121 does not disclose an intentto importthe provisions of §121.665 into §121.693. See, e.g. Certification and Operations; Domestic, Flag, andSupplemental Air Carriers and Commercial Operators of LargeAircraft; ProposedRule, 29 Fed. Reg. 12181 (Aug. 26, 1964); Part 121- Certification and Operations; Domestic, Flag, andSupplementalAir Carriers and Commercial Operators of LargeAircraft[New]; Final Rule, 29 Fed. Reg. 19186 (Dec. 31, 1964). 42 43
44 See Complainant's Briefat 12. AC 120-27E at 15. See Complainant's Briefat 14.

- 17-definition. Nor canit, given that itis a non sequitur45 The total weight ofthe aircraft, which mustbe indicated on the load manifest, has nothing to do with whether a weight is accurate relative to actual loading. Again, it is impossible to determine the precise weight ofthe aircraft ifan average weightprogram is used for a flight. Forthis reason, under the FAA's approved regime, "accuracy" is a mutable concept that allows for variation, provided that an aircraft's performance limitations are met, as they were in each ofthe flights at issue here. Sky West does not deny that, as a certificate holder, "it is responsible for the preparation and accuracy ofa load manifest form before each takeoff."46 However, inthe consolidated cases the FAA did not allege that SkyWest violated § 121.665. Rather, under the plainmeaning ofthe sections ofPart 121 thatthe FAA claims Sky West violated, the ALJ was correct in determining that no violations occurred. The Complainant's substantial reliance onIn the Matter of PolynesianAirways, Inc. 47 is particularly misplaced. InPolynesianAirways, a Part 135 operator used aircraft empty weight data that he knewwas inaccurate for purposes ofcompletingthe load manifest and weight and balance calculations. The data used was based on a weighing ofthe aircraftthat the lawjudge found to be untrustworthy, and whichhadbeen supersededby a later weighing performed after the FAA asked that the aircraft be reweighed.48 Thejudge determined that the operator violated § 135.63(c)- the regulation that makes a Part 135 operator responsible for the "preparation and accuracy ofa load manifest"

- because "an operator cannotuse an aircraft empty weight that he

45 The Complainantpurports to cite AC 120-27E as being in "accord," but the language quoted by the Complainant has no relevance whatsoever to what "accuracy" means in the context of a standard average bag weight program. 46 47 48 See 14 C.F.R. § 121.665. In the Matter of PolynesianAirways, Inc., FAA Order No. 94-40 (Dec. 9, 1994). !d. at 6.

- 18-knows is inaccurate."49 In affirming this aspect ofthejudge's decision, the Administrator noted that "it is a matter for concern that Respondent continued to use the August 1989 weighing despite the FAA inspectors efforts to help Respondent come into compliance" and the "egregiousness ofthe violations."50 The operator inPolynesianAirways used aircraft weight datathat itknew was inaccurate. The data in question was fundamental to all weight and balance calculations, as it comprised the basic empty weight and center ofgravity ofthe aircraft. Thus, the facts ofthat case were completely different than those presented here. They also demonstrate the difference between knowingly disregarding regulations pertaining to weight andbalance (i.e., PolynesianAirways) and following the regulations butmaking inadvertent mistakes in tallying loads (SkyWest). Moreover, the operator in that case was found to have violated the Part 135 regulation pertaining to its responsibility for the accuracy ofloadmanifests; the analogous Part 121 provision is not at issue here. PolynesianAirways does not support Complainant's arguments at all. The Complainant also misleadingly citesAdministrator v. Angstadt,51 by stating that it stands for the propositionthat anALJ did not err by finding a violation of 

### § 121.693(a) when load manifest "incorrectly" indicated number ofadults and children on flight. 52 That case did not involve a load manifest that indicated a total weightthat was incorrect as a result ofinadvertent human error, but one that was intentionally falsifiedin order allow an overweight flight to proceed. SeeAngstadt, 2008 WL 5373647 at *5 ("[T]he evidence establishes thatrespondent

49 Id. at 11. See also id. (for frnding a violation, "[i]t is onlynecessary to recognize at the time ofthe flights in question the Respondent knew that the aircraft weight established in August 1989 was no longer accurate"). 50 51 52 Id. at 14. NTSB Order No. EA-5421, 2008 

### WL 5373647 (Dec. 17, 2008). Complainant's Briefat 11.

- 19-altered the loadmanifest so that it incorrectly included 30,000 pounds as the permissible maximum weight.")53 The ALJ's determination that the Complainantfailed to carry its burden ofproofby a preponderance ofevidence that Sky West violated 14 C.P.R.§§ 121.693(a), (c) and (d) was appropriate in light ofthe undisputed facts and correct as a matter oflaw. 

### B. THE ALJ'S CIVILPENALTYASSESSMENT WAS IN ACCORDANCE WITH APPLICABLE LAW, PRECEDENT, AND PUBLIC POLICY. The Complainantultimately has the burden ofestablishingthat its proposed civil penalty is appropriate to the alleged violation54 A sanctionproposedby the FAA is "no more than a proposal or a recommendationto the ALJ."55 The Complainantmust showthat it consideredthe seriousness ofthe violation and the totality ofthe circumstances, and prove to the ALJhowit usedthe sanction guidance to arrive at its proposal.56 The Complainant must also prove the existence ofaggravating factors and must showhow itused aggravating or mitigating factors to adjustthe suggested sanction. The appropriate sanction mustbe based on a totality ofthe circumstances,57 including the nature, extent, and gravity ofthe violation, degree ofculpability, history ofprior violations, financial situation, and other matters asjustice may require.58 The ranges set forth inthe FAA's

53 Angstadtand the other case cited by Complainant, Hinson v. Rogers, NTSB Order No. EA-4428, 1996 WL 624468 (Mar. 5, 1996), are also both inapposite because they are NTSB airmen penalty cases. Further, Hinson like PolynesianAirways involved an alleged violation of§ 135.63(c), the regulation in Part 135 that addresses the accuracy ofload manifests. 54 In the Matter of Luxemburg, FAA OrderNo. 1994-18 (Jun. 22, 1994) at 6. 55 In the Matter of EasternAir Center, Inc., FAA OrderNo. 2008-3 (Jan. 28, 2008) ("Eastern") at 

### 8. 56 Id; see also In the Matter ofWarbelow 's Air Ventures, Inc., FAA Order 2000-3 (Feb. 3, 2000) at 19. 57 Eastern at 9. 58 In the Matter ofGoJetAirlines, LLC, Initial Decision (May 20, 2011) ("GoJet") at 8; quoting Folsom'sAirService, Inc. ("Folsom's") at II.

- 20-sanction guidance are for single, inadvertent violations.59 An inadvertent violation exists where the violation is a "single, isolated departure from compliance" with the regulation60 Evidence of swift or comprehensive corrective action mustbe considered as a mitigating factor61 The Administratorhas given significant weight to respondents' efforts to ensure that a violation will notrecur. 62 Where remedial corrective action was not considered in the FAA's proposed sanction, it should be consideredby the ALJ in his initial decision.63 Here, the Complainantfailed to follow its own guidance and the applicable authorities when formulating its proposed civil penalty. It disregarded the totality ofthe circumstances and refused to considerthe Respondent's corrective actions. In contrast, the ALJ correctly applied the framework ofthe FAA's sanctionpolicy contained in Order 2150.3B. In each ofthe consolidated matters, the ALJ determined thatthe "evidence and testimony did not supportthe penalty requested." 64 Inreaching this conclusion, the ALJ analyzed these matters inlight ofthe totality ofthe circumstances and took into account the Respondent's corrective actions as mitigating factors. Inthese cases the FAA did not allege that the Respondent acted intentionally, carelessly, or recklessly, and no evidence exists that a safety issue resulted from a noncompliance. The ALJ properly consideredthe totality ofthe circumstances and issued an award in line withthe FAA's sanction guidance. Simplyput, the ALJ calculatedthe civil penalty correctly and the Complainant did not.

59 Eastern at 9. 60 In the Matter of PinnacleAirlines, Inc., Docket FAA-2009-0180, Initial Decision (Dec. 11, 2009) at 19. 61 In the Matter of AmericanAirNetwork, Inc., FAA OrderNo. 2006-5 (Feb. 10, 2006) at 7. 62 In the Matter of AirtranAirways, Inc., DocketNo. FAA-2010-0193, Initial Decision (Jun. 23, 2010) at 14. 63 Id. at 15. 64 See, e.g., Initial Decision in FAA-2012-0872 at 43.

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-

### 1. The 

### ALJ Properly Refused to Assess Separate Sanctions for Violations of 14 C.F.R. §§ 119.5(g) 

### and 119.5(1). The ALJ"s refusal to impose multiple civil penaltiesper flight for separate violations of 14 

### CFR §§ 119.5(g) and 119.5(1) was appropriate and in accordance with law. The Complainant"s attempt to seek multiple penalties for multiple violations from a single instance of noncompliance amounts to compounding the violation contraryto the prohibitions contained in Order 2150.3B, whichprovides that: When a single instance ofnoncompliance results inmultiple violations of general and specific regulations involving the same or similar conduct, the FAA ordinarily does not compoundthe sanction
...." 65 As the Administrator observed in an appeal from anALJ's assessment ofa civilpenalty, ')udgment should be exercised in determining the seriousness ofthe violations and applying a sanctionthat will deter future violations by the violator or others similarly situated, i.e., the totality ofthe circumstances ofthe case shouldbe considered." 66 The ALJ exercisedhis judgment in precisely this manner. Section 119.5(g) provides, in pertinentpart, that "[n]o person may operate as a direct air carrier or as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications
...." 67 Section 119.5(1) provides that "[n]o personmay operate an aircraft under this part, part 121 ofthis chapter, orpart 135 ofthis chapter in violation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issuedunderthis part." 68 The ALJ determined that each ofthe flights at issue violatedthese provisions, but that§§ 119.5(g) and (I) "are not significantly different" so as to

65 66 67 68 FAA Order 2150.3B, Chapter 7,

**~** 6.c. Id, quotingFAA Order 2150.3B, Appendix 4. 14C.F.R. § 119.5(g). 14 C.F.R. § 119.5(1). -22-justify a civil penalty be assessed against Respondent for each subsection for eachflight.69 In reaching this conclusion, the ALJ expressly applied the admonition in Order 2150.3B against compounding sanctions for multiple violations arising from a single instance of 

### I . 70 noncomp tance. The ALJ's analysis was correct and appropriate, while the Complainant's arguments to the contrary miss the mark for a number ofreasons. 

### First, as discussed above, the FAA's sanction guidance does not support compounding of violations, and the ALJ was well within his discretion to apply this guidance to the violations he found. 

### Second, the ALJ was correctin finding that the subsections were not significantly different for purposes ofsetting the civil penaltyin these cases. Each ofthe violations alleged here involved the operation ofan aircraft. The ramp workers were counting bags for the purpose offacilitating flights, not as a ministerial function relating to operating as an air carrier distinct from operating an aircraft. Third, the Complainant's reliance on the test for multiplicity from the Blockburger case71 is misplaced. The Blockburger test arose in connection withcriminal doublejeopardy, and is used to determine whether multiple charges under different statutes "require[s] proofofan additional fact which the other does not.',n The rule is not, however, required to be applied in civil penalty cases.73 The Complainant suggests that applying the Blockburgertestis a standard,

69 70 71 72 See Initial Decision in FAA-2012-0872 at 44. I

d. Blockburger v. UnitedStates, 284 U.S. 299 (1932). Id. at 304. 73 See, e.g. In the Matter ofMidtown Neon Sign Corp., CP94EA0057, 1996 WL 509936, at 2 (Aug. 12, 1996) ("Ithas not been established thatthe Double Jeopardy Clause applies in civil penalty proceedings arising under the Federal hazardous material statute").

- 23

-controllingpractice and cites theAlphinAircraftcase74 as finding multiple violations where "there was an additional required fact for eachviolation the lawjudge found." 75 This statement is misleading, however, because the Complainant selectively truncates the first part ofthe sentence quoted, which reads, "Assuming, for the sake ofargument, that the Double Jeopardy Clause applies inFAA civil penaltyproceedings
...." 76 AlphinAircraft does not stand for the propositionthattheBlockburger test mustbe applied here. Fourth, the ALI's determination that separate sanctions are not warranted does not render§ 119.5(g) or§ 119.5(1) superfluous, as argued by Complainant. This is demonstratedby the regulatory history of§ 119.5. Both subsections (g) and (I) were intended to address the same violation, but subsection (g) was intendedto apply to certificate holders and commercial operators, whereas subsection (I) was added later to close a gap that existed because subsection (g) did not apply to individual pilots operating for a certificate holder or commercial operator. The preamble to the Final Rule that added§ 119.5(1) explains this as follows:

74 1997). 75 Theproposal also added§119.5(1) which statedthat, for safety purposes, people who operate aircraft underparts 121 and 135 must complywiththe provisions in a certificate holder's operations specifications. This paragraphwasproposedto prevent an employee ofa certificate holder (with or without other certificate holder's knowledge) from violating the provisions ofthe certificate holder's operations specifications. For example, ifa certificate holder is only authorized to carry cargo, a flight crewmember would not be allowed to bring along a friend as a passenger onthe commercial flight.77

In the Matter of AlphinAircraft; Inc., No. CP93EA0334, 1997 

### WL 93229 (Feb. 20, Complainant's Briefat 20. 76 AlphinAircraft at 5. In the FrostedAtelier case, also cited by Complainant, although the Blockburger testwas applied, there is no statement that it is controlling. See In the Matter of FrostedAtelier, Inc., FAA 2013-5,2013 WL 5288992 at *8 (Sep. 5, 2013). 77 OperatingRequirements: Domestic, Flag, Supplemental, Commuter, and OnDemand Operations: Editorial and Other Changes; FinalRule, 62 Fed. Reg. 13248, 13248-49 (Mar. 19, 1997). -24-Therefore, inthe absence of§ 119.5(1), there wouldbe no violationby anindividual pilot who fails to comply with his or her employer's operational specifications.78 Accordingly, upholding the ALJ's determination that the distinction betweenthe provisions was inconsequential does not require finding that one ofthe subsections is superfluous. 

### 2. The ALJProperly Found The Violations to be Technical in Nature. In assessing the appropriate civil penaltyto impose, the ALJtook into account the fact that the violations were technical innature. This conclusion was correctbased onthe evidence introduced at trial. Sky West presented umebutted expert testimonythat each ofthe flights at issue were operated within applicable weight and balance limitations and operational criteria. In accordance withthe evidence, the ALJ determined that Significantly, the violations were technical in nature. They had no material effect onthe weight and balance or on aircraft performance. SkyWest showed that in no instance was safety offlight ateven the slightestrisk.79 Each ofthe mistakes that led to the violations had a de minimis effect. The counting and arithmetic errors at issue were far from substantial. This is demonstrated by the fact that none of the aircraft were operated outside oftheir weight and balance limitations, as the Complainant concedes. The Complainant's argumentthat this outcome was fortuitous is hyperbolic and not credible. The Complainant itselfallows other airlines using standard average weights programs 78 The Notice ofProposed Rulemaking explained the reason for adding 119.5(1) in even greater detail. See OperatingRequirements: Domestic, Flag, Supplemental, Commuter, and OnDemand Operations: Editorial and Other Changes; ProposedRule, 62 Fed. Reg. 5076, 5077 (Feb. 3, 1997) ("One situation that was not adequately covered in the currentprovisions ofpart 119
... is the situation where an employee ofa certificate holder, with or without the certificate holder's knowledge, violates the provisions ofthe certificate holder's operations specifications
.... Because the flight crewmember did not act as a direct air carrier or commercial operator, the prohibitions in section 119.5(g) are inapplicable."). 79 See, e.g. Initial Decision in F AA-2012-0872 at 43.

- 25-to apply buffers to baggage counts and weights such as, for example, inthe case ofone carrier, a 20-bag/600-pound margin oferror intallying loads. 80 The FAA's sanction guidance calls for imposing a minimum sanction where, as here, the violations were technical in nature.81 3. TheALJ Properly Considered Respondent's CorrectiveActions In Mitigation. A civil penalty maybe reduced based upon corrective action where there is evidence of "swift or comprehensive action that is positive 

### innature, such as sending employees to special training or instituting programs to ensure compliance with the safety regulations." 82 By "positive," the Administrator means "actionto prevent future violations from occurring." 83 The Administrator has given significantweight to respondents' efforts to ensure that a violation will notrecur. 84 Where remedial corrective action was not considered in the FAA's proposed sanction, it should be consideredbythe ALI in his initial decision.85 Inline with these authorities, the ALI properly considered the Respondent's corrective actions here, finding that the Respondent was cooperative, admitted the violations, and "took swift, comprehensive corrective action." 86 The Complainant's suggestionthat the "majority" of Sky West's response actions predatedthe flights at issue is disingenuous. Itignores the

80 See Exhibit R-4. 81 See Order 2150.3B at B-12, Fig. B-l-c(2). 82 In the Matter of RonaldHaydon Whitley, FAA Order No. 2009-4 (Jan. 14, I009) at 21. 83 See id. at 22 (citingIn the Matter of AlikaAviation, Inc., FAA Order No. 1999-14 at 11 (finding that terminating an employee does not amount to a positive corrective action because it does nothing to ensure that other or future employees do not make the same mistake)). 84 In the Matter of AirtranAirways, Inc., DocketNo. F AA-2010-0193, Initial Decision (Jun. 23, 2010) at 14. 85 Id at 15. 86 See, e.g. Initial Decision in FAA-2012-0872 at 43. -26-continuous nature ofSky West's improvements and the robust actions that Sky West took in 2011 and into 2012. In assessing the civil penalty, the ALJ took into account the extensive evidence introduced ofSkyWest's corrective actions, which included substantial improvements in2011, the companywide implementation ofSMS, and the development ofamended weight and balance procedures in concert with the SMS program87 The evidence ofthese corrective actions was before the ALJ, and he properly considered them as mitigating factors. 

### 4. The Penalty Imposed By the 

### ALJ is Supported By the FAA's Sanction Guidance. In a civil penalty case, the appropriate sanction is based on a totality ofthe circumstances,88 including the nature, extent, and gravity ofthe violation, degree ofculpability, history ofprior violations, financial situation, and other matters asjustice may require.89 In making his civil penalty calculations, the ALJ considered these elements and diligently applied the framework ofOrder 2150.3B to the facts before him. The ALJ took into account, inter alia, the following factual findings: that the violations
were inadvertent, that the violations were technical innature, thatthere was no threat to safety, and that the Respondent responded with corrective actions to address the violations. Assessing a relatively low civil penalty is appropriate where such factors are found to exist. For example, in Eastern, the FAA sought a civil penalty of$6,000 but the ALJ reduced itto $2,400. Onappeal, the Administrator assessed an even lower civil penalty of$1 ,500. Citing the "lack ofimpact on safety," the Administrator determined that a $1,500 civil penalty was appropriate inlight ofFAA

87 Id. 88 Eastern at 9. 89 GoJet at 8; quoting Folsom's at II.

- 27-sanction policy, the evidence inthe record, and the totality ofcircumstances (i.e., nature ofthe violation, multiple flights, no hazard posed, and the carrier's size). 90 In addition, the FAA's sanction guidance contemplates "penalties lower than the ranges" inthe context of"numerous multiple violations resulting from aninitial act or omission," emphasizing that "[i ]tmay be appropriate to select a civil penalty amount belowthe ranges in Figures 7-l or 7-2 ifthe degree ofculpability is minimal, the degree ofpotential hazard is extremely low, and there are no other aggravating circumstances."91 That was the case here. The imposition ofcivil penalties lower than those sought bythe Complainant is appropriate. The ALJ acted well within his discretion, consistent with the applicable authorities and sanction guidance, in setting a penalty of$250 per flight. 

### 5. The Penalty the Complainant Seeks is Unreasonable, UndulyHarsh, and Inconsistent With Policy. The Complainant seeks a penalty of$40,000 per flight for simple human counting and arithmetic errors. The Complainant's proposed civil penalty is unwarranted, over counts the number ofviolations, assesses too high an amount perviolation, and does not credit Respondent's mitigation measures. The Administrator "does not encourage the use ofa mathematical formula to set a civil penalty" but rather encourages that civil penalties be assessed "based on a consideration ofall relevant factors." 92 In determining the appropriate penalty, "it is improper to take the mathematical, formulaic approach ofmultiplying the number ofviolations by a set dollar

90 Eastern at 11-12. 91 FAA Order 2150.38 at 7-13. 92 In the Matter of Mole-Master Services Corporation, FAA Order No. 2010-ll (Jun. 16, 2010) at 12, n. 13. -28-amount. 93 Here, the Complainant's approach to calculating the civil penalty is defective because it ignores the technical nature ofthe violations, improperly seeks to compound penalties, and fails to properly take into account the totality ofthe circumstances and Respondent's corrective actions. As such, the Complainant's approach is unreasonable. Simplyput, the ALJ conducted the analysis ofthe facts and totality ofcircumstances withinthe framework ofFAA's sanction guidance that the Complainantrefused to perform. An appropriate civil penalty "mustreflect the totality ofthe circumstances surrounding the violations."94 Here, the Complainant seems to give no due credence to the fact that the events at issue arose from an inadvertent human error with no impact on safety. Although the Complainant acknowledges that it should consider error tolerance systems that take into considerationhuman limitations95 (), and has allowed other airlines to apply buffers to baggage counts, it has taken a strict liability approach to SkyWest, and has refused to allow Sky West to amend its weight and balance program to address humanperformance issues. 96 Moreover, it is, at best, a matter ofconcern that the FAA is seeking a penalty for the
same types ofalleged violations thatthe ALJ adjudicated inprior cases arising from contemporaneous events. In those cases the ALJ determined that any violations were technical in nature and did not affect safety, and concluded that a penalty of$250 per flight was appropriate. Again, those "prior cases" arose contemporaneously with the cases that are the subject ofthis appeal. They were merely litigated earlier and the FAA did not appeal from the

93 In the Matter of Interstate Chemical Company, Inc., FAA Order No. 2002-29 (Dec. 6, 2001) at 15. 94 2012) at 25. 95 96 In the Matter ofVenturaAirServices, Inc., FAA OrderNo. 2012-12 (Nov. 1, See FAA Order 9550.8, HumanFactors Policy (eff. Oct. 27, 1993). See FAA-2011-0485/0486 andFAA-2011-0779, Tr. 112:19-22; 113:1-17. -29-results. In the newmatters, withoutjustification the FAA increased the penalty it seeks from $33,000 per flight to $40,000 per flight. Instead ofallowing Sky West to amend its weight and balance program to take advantage ofmargins oferror afforded to other airlines, the Complainantpositioned aviation inspectors at various airports throughout the country to sit and wait for arrivals ofSky West aircraft and count bags in order to repeatedly bring enforcement actions. Rather than giving due regard to Sky West's corrective actions and attempts to work cooperatively with the FAA to address human error in connection with aircraft loading, the Complainant is seeking an unjustified penalty of$40,000 per flight. The Complainant's actions and positions inthese cases run directly contrary to its compliance philosophy. The ALJ, acting within his discretion and in consideration ofthe evidence presented to him, reached the right conclusions. 

### CONCLUSION The findings and decisions ofthe ALJ are clearly supported by its findings offact and conclusions oflaw. The civil penalties set bythe ALJ were well withinhis discretion and supported bythe FAA's sanctions guidance and relevant authorities. Accordingly, Respondent respectfully requests that the Complainant's appeal by denied and the ALJ's decisions the consolidated cases be affirmed.

- 30-Dated: November 18,2015 Respectfully Submitted, 

# ralf'F. Murphy Marc L. Warren Paul Alp CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Telephone: (202) 624-2500 Facsimile: (202) 628-5116-andTodd C. Emerson SkyWestAirlines, Inc. 444 South River Road St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505 Counsel for SkyWestAirlines, Inc.

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-

### CERTIFICATE OF SERVICE I hereby certify that onthis date I have servedby FedEx, postage prepaid, the original and two (2) copies ofthe foregoing Reply BriefofRespondent/Appellee Sky West Airlines, Inc. addressed to:
Federal Aviation Administration 600 Independence Avenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl00
I hereby certifythis date I have served byFedEx, postage prepaid, and electronic mail a copy ofthe foregoing Reply BriefofRespondent/Appellee Sky West Airlines, Inc. addressed to:
Peter J. Lynch Casey E. Gardner Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Avenue SW Washington, D.C. 20591
Dated: November 18,2015

- 32-