U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

RECEIVED 

FEDERAL AVIATION 

ADMINISTRATION 

) 

) 

) 

NOV 1 9 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; 

F AA-2012-0904; FAA-2013-0617; F AA-2013-0619 

_______________________) 

BRIEF OF RESPONDENT/APPELLEE 

SKYWEST AIRLINES, INC. 

The Respondent, SkyWest Airlines, Inc. ("Respondent" or "SkyWest") hereby files its 

Responsive Appellee Brief requesting that the Initial Decisions issued by Administrative 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 which ramp workers allegedly made minor 

mistakes in counting bags or recording other information on forms filled out during the loading 

process. Each of the events was the result of pure human error and none resulted in a single 

aircraft being operated outside of acceptable performance parameters. None of the mistakes 

were intentional, and the FAA has not alleged that they were anything other than inadvertent 

errors. 

In fact, the ALI made no finding in any of the consolidated cases of deliberate acts 

involving intentional misconduct, disregard of procedures, or knowingly using inaccurate 
loading data. Rather, each event was a prototypical example of an inadvertent, 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 draconian penalty regime that flies directly in the face of the FAA's 

compliance philosophy. It is also contrary to the buffers- acceptable margins of error 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 West followed its procedures, each of these matters arises 

from simple human error: ramp workers making mistakes in filling out the 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 of the circumstances, sanctions 

guidance, precedent, and policy. The Complainant's appeal should be denied. 

U. BACKGROUND 

A. FACTS 

Sky West is a regional airline that provides scheduled air service throughout the United 

States. It operates an average of over I, 700 flights per day. At some stations, notably Chicago 

O'Hare, Denver, and Minneapolis, ramp activities for Sky West flights (including the loading of 

baggage and cargo) are conducted by partner airlines. 

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These consolidated matters arise from the loading of Sky West aircraft on 14 flights 

over an eight-and one-half month period in 2011. The operative fact central to each case 

involves the recording of items loaded onto aircraft by ramp workers on forms known as 

Cargo Load Reports ("CLRs"). From the testimony of the FAA inspectors who observed the 

offloading of baggage on these flights, no dispute exists that the amounts of baggage 

offloaded differed from what was recorded on the flight crews' copies of the CLRs. These 

discrepancies were the product of human error. The ramp workers who filled out the CLRs 

followed approved procedures, but made mistakes. The FAA made no allegations in any of 

the consolidated cases of intentional or reckless acts or omissions relating to the recording of 

loading data on CLRs. The Complainant did not introduce evidence or attempt to argue that the 

mistakes made on CLR entries were caused by anything other than inadvertent oversights. 

Like most carriers, SkyW est 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 West is authorized to use average weights for passengers, carry-on 

personal items, planeside loaded items, and checked baggage under Paragraph A098 of its 

Operations Specifications ("OpSpecs"). An average weights program relies on estimates. As 

explained by the FAA in Advisory Circular AC 120-27E, Aircraft Weight & Balance Control: 

For many years, operators of transport 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 of error. ... However, 

differences between the actual weight of passengers and bags and the 

average weight of passengers and bags can occur when using average 

wet "gh 2 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 pmsuant to Sky West's 

program include: 

• Standard checked bags and planeside-loaded items and standard bags: 30 pounds per 

item; 

• Heavy checked bags: 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 in the 

overhead bins) are assumed to have zero weight, if any such item is for any reason removed from 

an overhead bin and placed in the cargo hold, it is then given an assumed weight of 30 pounds. 

Thus, a carry-on item that would fit in the overhead bin of one ofSkyWest's regional jets and 

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

overhead bins on the Brasilia are considerably smaller than those on the other aircraft.4 

Therefore, under its standard average weights program, Sky West could follow its procedmes to 

the letter and still not know the actual weight of an aircraft, due to the estimates applied. This 

outcome is not a problem that indicates a violation, but rather is inherent in the natme of the FAAapproved procedme. 

SkyWest's W&B Manual instructs loading personnel to record on the CLR the total 

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

items such as company materials ("CO MAT"), ballast, and freight loaded onto the aircraft. 

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

reverse side of the CLR. 5 Scanners, originally designed to track movement of baggage through 

the system, are also used (depending upon which code sharing 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. 

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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 CLR has been prepared, and no modification 

or amendment of the CLR is required if verbally authorized by the flight crew. 

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

CLRs offered as evidence by the FAA are flight crew copies. With these two exceptions, the 

FAA did not request the preservation of the originating stations' CLRs, and the station copies of 

CLRs were destroyed in the ordinary course of business, as they are required to be retained for 

only one day. Station copies of CLRs would most likely have reflected any modifications or 

amendments, and the reverse sides of the station copies would have had the tally sheets showing 

how loaded items had been counted.7 

The Respondent admitted that discrepancies were found between the FAA inspectors' 

counts of offloaded items and what had been recorded on 12 of the 14 CLRs. On one CLR, there 

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

each of the 14 flights, the weight discrepancies were de minimis. The undisputed evidence 

showed that weight discrepancies between what was recorded on the CLRs and what the FAA 

inspectors computed ranged from 0 to 390 pounds (with the vast majority being in the 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 of the station copy of the CLR, Inspector Adam 

Perkins testified that there was a "format to help the ramper count the bags" (Tr. 76:1-12.), because 

"it would be easy to lose track in your head. It gives him a way manually to keep track of bags as 

they go on the airplane." Tr. 76:5-8. Even Principal Operations Inspector Andrew Ayers testified 

that it would have been beneficial for the FAA to have obtained the station copies of the CLRs, with 

the tally sheets, to see how the loading personnel came up with their count. Tr. 210:4-211:4. Yet, 

only one FAA inspector investigating two flights obtained the station copies of the CLR, and, in one 

of the cases, it showed that there was no violation. See Exhibit R-21. 

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Carl Salamone, an engineer, pilot, and flight instructor, was received by the ALI as "an 

expert in the field of calculation of aircraft weight and balance and the effects of that weight and 

balance on performance. "

8 He reviewed weight and balance information for each of the 14 

flights at issue and concluded that none of the flights exceeded maximum takeoff weight and 

none of the 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 of the flights were in excess of manufactmer limitations for takeoff weight, center of 

gravity, runway performance, climb performance, or maximum operating altitude. 10 

Thus, it is undisputed that each of the flights at issue 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 of its substantial corrective actions to prevent 

human error in the loading process, including, among other things, enhanced initial and recurrent 

training; annual weight and balance workshop conferences; self-audits to ensme compliance; 

online CLR training courses; focus groups conducted with frontline agents to better understand 

where potentials for error exist; better coordination with contract stations and codesharing 

carriers handling Sky West's aircraft loading; manual, policy and procedure revisions; and 

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

8 See, e.g. Initial Decision of Administrative Law Judge, In the Matter of Sky West 

Airlines, Docket No. F AA-2012-0872 (Jul. 16, 2015) ("'nitial Decision in FAA-2012-0872") at 24. 

9 Jd. at 26. 

10 I d. 

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of ground operations- all with the objective of improving accuracy and reducing the likelihood 

of human error11 

These actions reflected continuous, longstanding efforts to achieve improvements dating 

back to 2009, but also included numerous corrective actions that Sky West took in 2011 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 SkyW est aircraft; 

• Conducting surveillance and analysis of loading procedures; 

• Developing new procedures and responsibilities for a "Designated Loacling Agent" 

position, a single person responsible for the loading of each aircraft and who would 

wear an armband so as to be visible to flight crews and other ground personnel; and 

• Doubling the time of initial classroom training given to new hires about aircraft 

loading procedures, filling out CLRs, heavy bag determinations, and weight and 

balance issues. 12 

Sky West 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, with respect to addressing weight and balance issues, "Sky West was cooperative and 

responsive to FAA concerns," and the "FAA had 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 

Sky West's efforts. Representatives ofthe CMO attended and participated in Sky West's weight and 

balance training and never stated that it was insufficient or ineffective. Sky West had periodic 

teleconferences with its CMO to ensure Sky West's compliance efforts were satisfactory, and the 

FAA never offered even a hint that Sky West's actions were insufficient in any respect. 

14 Initial Decision in FAA-2012-0872 at 42. 

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Once notified of the violations, SkyWest took swift, comprehensive 

corrective action including implementation of an SMS after the 20 II 

met . 'd 15 ents .... 

Sky West is an industry leader with respect to SMS. In order to ensure that the airline 

remains at the forefront of safety, Sky West voluntarily joined the FAA's SMS Pilot Project in 

2010. In 20 II, Sky West conducted a companywide audit to identify any gaps between the 

requirements of SMS and the processes being used in each department. These activities 

eventually culminated in detailed SMS processes for each department being fine-tuned and 

memorialized in the airline's SMS manual and various training instruments. The amended 

loading and weight and balance procedures the airline presented to 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 of the flights at issue in the actions consolidated for appeal predate an October 2, 

2012 hearing and Initial Decisions of May 2, 2013 in Docket Nos. FAA-2011-0485, FAA-2011-

0486, and FAA-2011-0680/0779. In those cases, the FAA alleged violations of the same 

regulations here under analogous facts and sought civil penalties in the amount of $33,000 per 

flight. 

In his Initial Decisions in the prior cases, the ALJ determined, inter alia, that the FAA 

failed to prove violations of 14 C.F.R. § 121.693, concluded that penalizing Sky West 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, in the actions consolidated in this appeal, the Complainant seeks 

15 !d. at 43. 

16 See Exhibit R-5-1. 

17 By Order served May 5, 2014, the ALJ granted Sky West's April18, 2014 Request 

for Judicial Notice, which included the May 2, 2013 Initial Decisions. See Item I.a. 

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even greater penalties for substantially identical cases that arose contemporaneously with the 

prior ones, ignoring the ALJ's prior fmdings. Where the Complainant previously 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 OTHER AIRLINES 

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

and counting process, Sky West attempted to obtain FAA approval of a modification to its weight 

and balance program, similar to that which the FAA previously approved for other airlines.1 8 The 

amendment would permit small variances in baggage counts as necessitated by operational 

considerations. 19 The modification specifically took into account the FAA's Human Factors 

Policy and included SMS practices.Z0 The FAA has allowed at least one other airline to apply a 

20-bag/600-pound "cushion," i.e., margin for error, with respect to tallying the loading of its 

aircraft. 21 SkyWest had requested something considerably more restrictive than that.22 Despite 

Sky West's showing of an equivalent level of safety, the FAA refused to permit Sky West to 

amend its program to address human performance issues.23 Instead, the FAA chose to pursue a 

series of enforcement actions. 

The FAA's position is particularly unreasonable in light of the fact that it does not require 

the airlines that handle bag loading for Sky West at major hub airports to obtain perfect bag 

counts. SkyWest operates approximately 135 flights/day at O'Hare, 132 flights/day at Denver, 

]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 of Christopher 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 Sky West's communications with the FAA as a request for 

exemption under FAR Part 11, which they were not. All that was requested was a revision to its 

weight and balance program to address human factors, which the FAA refused to allow. 

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and 95 flights/day at Minneapolis where ramp personnel employed by other airlines- United and 

Delta -load bags and complete CLR forms for Sky West flights. Sky West understands that these 

other airlines are afforded buffers with respect to 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 load bags for other airlines. 

E. THE ALJ'S FINDINGS 

In each of the consolidated cases, the Complaint alleged that Respondent 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 of load manifests). 

In a series of written Initial Decisions dated July 16, 2015, the ALJ held that Complainant 

failed in each of the cases to make a prima facie case that Respondent 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 of the flights at issue. In case number F AA-2012-0874, the ALJ found that 

the FAA failed to prove any violations with respect to Flight 4540 because the Complainant did 

not properly identify the aircraft that operated the flight in its complaint.24 

In determining the penalty amount, the ALJ expressly applied the framework of FAA'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 of Administrative Law Judge, In the Matter of Sky West Airlines, 

FAA-2012-0874 at 43 ("Failure to properly identify the aircraft operated cannot constitute a 

violation."). For purposes of this appeal, Sky West acknowledges that, notwithstanding the mistakes 

the FAA made in its complaint, it had notice in case FAA-2012-0874 of the aircraft that operated 

Flight 4540. Unlike the Complainant, Sky West recognizes that simple human errors happen, and 

does not contest the Complainant's appeal on the issue of whether Sky West violated 14 C.F.R. 

§§!19.5(g) and (I) by operating Flight 4540. With respect to this flight, Sky West takes the position 

that a single penalty of $250 is the appropriate sanction, consistent with the ALJ' s findings with 

respect to the other flights at issue. 

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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 of his determination that a 

civil penalty in the amount of $250 per flight was warranted: 

• SkyWest was "cooperative and responsive to FAA concerns"; 

• The FAA "had a cooperative working relationship with Sky West"; 

• Once notified of the violations, "SkyWest took swift, comprehensive corrective 

action including implementation of SMS after the 2011 incidents"; 

• The violations "were technical in nature"; 

• The violations "had no material effect on weight and balance or on aircraft 

performance"; 

• Sky West showed that "in no instance was safety of flight at even the slightest risk"; 

• The FAA "failed to show for any of the flights that SkyW est 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 of both §119.5(g) and 

§ 119.5(1). He reasoned that, because the two sections were "not significantly different," 

penalizing Sky West for both violations would be "unjustified." In reaching this conclusion, the 

ALJ specifically referenced FAA's sanction guidance, Order 2150.3 B, and its statement of 

policy that the FAA ordinarily does not compound a sanction where a single instance of 

noncompliance results in multiple violations.Z7 

25 

26 

27 

See, e.g. Initial Decision in F AA-2012-0872 at 43. 

Id. at 42-43. 

Id. at 44. 

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The ALJ concluded that, under the circumstances presented, a single civil penalty of 

$250 per violation "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 by the Complainant is grossly excessive in light of the totality of 

circumstances. As found by the ALJ, each of the events at issue arose from simple human error 

in counting bags and/or filling out CLR forms. The arguments in Complainant's brief are 

founded on an attempt to draw a false equivalence between discrete instances of human error and 

the wholesale disregard of procedures by an airline and its personnel. Although the Complainant 

may not 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 of an airline failing to follow procedures. Here, no evidence exists of any such actions. 

Inadvertent mistakes by individual 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 on the 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 of understanding, or diminished 

skills. The Agency believes that deviations of this nature can most 

effectively be corrected through root cause analysis and training, education 

or other appropriate improvements to procedures or training programs for 

regulated entities, which are documented and verified to ensure 

effectiveness.29 

Id 

FAA Order 8000.373, Federal Aviation Compliance Philosophy, at 2 (Jun. 26, 2014). 

This Order also states that "reluctance or failure in adopting these methods to remediate deviations or 

(Continued ... ) 

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This philosophy is mirrored in Order 8900.1, as follows: 

If the 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 of compliance tools, techniques, 

concepts, and programs30 

Here, the FAA did not allege that any intentional, reckless or criminal behavior took place. The 

ALJ found that SkyWest was "cooperative and responsive to FAA concerns" and took "swift, 

comprehensive corrective action" once it was notified of the 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 of the flights at issue safety of flight was neither affected nor 

compromised. As explained by unrefuted expert testimony, any weight discrepancies caused by 

the inadvertent miscounting of bags were de minimis and had no effect on the weight, balance, 

performance, or handling of the aircraft. These cases are the product of basic human factors -

simple human errors in counting and arithmetic. 

The standard of review in any appeal from an ALJ decision is whether: (i) each finding 

of fact is supported by a preponderance of reliable, probative, and substantial evidence; (ii) each 

instances of repeated deviations might result in enforcement." I d. These circumstances were not 

found to be present here. The ALJ expressly determined that "[o]nce notified of these violations, 

Sky West took swift, comprehensive corrective action including implementation of an 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 of human 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 of error 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 of law 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 in his Initial Decisions based on the facts 

presented. All of the ALI's legal conclusions were in accordance with applicable law, precedent, 

and public policy, and the Complainant has not shown that the ALI committed any prejudicial 

errors. Accordingly, the ALI's opinions should be sustained. 

A. THE ALJ DID NOT ERR IN REFUSING TO FIND VIOLATIONS OF 14 

C.F.R. §§121.693(a), (c) & (d). 

The ALI concluded that, based on the facts of the consolidated cases, Sky West did not 

violate 14 C.F.R. §§121.693(a), (c) and (d). Applying the plain language of Section 121.693 to 

the facts makes it apparent that the ALJ reached the correct result. In each of the cases the flight 

crews prepared load manifests in accordance with the Sky West W &B Manual, and there is no 

allegation that they did not include the information on the manifests required by the manual or 

the applicable regulations. The ALI's reasoning was sound and his conclusions should be 

sustained. 

Section 121.693 states in its stern that the "load manifest must contain the following 

information concerning the loading of the aircraft at takeoff time" and then identifies the 

required information in subsections. Subsection (a) lists "the weight of the aircraft, fuel and oil, 

cargo and baggage, passengers and crewmembers."34 It is undisputed that the load manifests 

prepared for the flights at issue contained "information concerning" the "weight of the aircraft, 

fuel and oil, cargo and baggage, passengers and crewmernbers" at takeoff time. Therefore, the 

Complainant did not prove 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). 

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Subsection (c) lists "[t]he total weight computed under approved procedures."35 It is 

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. If a pilot preparing a 

load manifest computed total weight based on the information on a CLR, and (unbeknownst to 

the pilot) the CLR contained a mistake, this does not mean that the pilot did not follow approved 

procedures in preparing the load manifest. Rather, in relying on the CLR, the pilot followed the 

approved procedure in computing weight. At trial the Complainant presented no evidence that 

the people who prepared the load manifests did not follow the approved procedures for 

computing the total weights indicated on the manifests. Therefore, the Complainant did not 

prove that SkyWest violated Section l21.693(c). 

The same analysis applies with respect to alleged violations of Section 121.693( d). 

Section (d) lists "[ e ]vidence that the aircraft is loaded according to an approved schedule that 

insures that the center of gravity 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). If a pilot completing a load manifest relied on a CLR that contained some inaccurate data, 

this does not mean that the load manifest did not contain evidence that the aircraft was loaded 

according to an approved schedule. Indeed, there is no evidence that any of the load manifests 

for the flights at issue indicated that the center of gravity was not within limits. As the 

Complainant concedes, it is undisputed that each of the aircraft was operated with a center of 

gravity within approved limits. The ALI described the unrebutted testimony ofSkyWest's 

expert in the field of weight and balance with respect to each of the 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 of the flights exceeded maximum takeoff 

weight and none of the 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 not indicative 

of fortuity, as the Complainant argues. Rather, it demonstrates the de minimis nature of the 

mistakes that were made in preparing CLR forms. 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, SkyWestfollowed the requirements in§§ 121.693(a), (c), and (d). As he explained: 

Sky West computed its load manifest from its CLR using its Manual's 

average weights program. Sky West's OpSpecs required loading 

procedures to follow the Manual. The load manifest, then, used approved 

procedures to compute the weight of the 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 of gravity was within approved limits.39 

In this straightforward manner, the ALJ applied the language of the regulations that the FAA 

alleged were violated to the facts presented. 

In contrast to the ALI's straightforward approach, the Complainant tries 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, but rather, as it states on its face, identifies the types of information 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 of a 

load manifest form before each takeoff. The form must be prepared and 

signed for each flight by employees of the certificate holder who have the 

Initial Decision in FAA-2012-0872 at 26. 

I d. 

Jd. at 34-35. 

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duty of supervising the loading of aircraft and preparing the load manifest 

forms or by other qualified persons authorized by the certificate holder. 40 

The drafters of the regulations could have used the term "accuracy" in§ 121.693 if they chose to, 

but they did not. They could have indicated that§ 121.665 should be read into§ 121.693, but 

they did not. 41 The two provisions are distinct. 

Moreover, the term "accuracy" is in this context can have variable meanings. The 

Complainant takes pains to argue that Sky West is a violator because the actual weights on load 

manifests did not match the actual weights of cargo loaded onto aircraft42 However, Sky West 

uses an FAA-approved average baggage weight program. Under this program, the actual 

weights of bags are not used in computing the information on the load manifest. As the FAA 

itself recognizes, "differences between the actual weight of passengers and bags and the average 

weight of passengers and bags can occur when using average weights."43 Thus, if "accuracy" 

means exact precision corresponding to the actual load of the aircraft, the load manifest will 

never be "accurate." 

With respect to a standard average bag weight program, the Complainant argues that 

"accuracy" on a load manifest refers to a bag count that results in a weight that is accurate 

relative to the total loading of the aircraft. 44 The Complainant cites no authority for this 

40 14 C.P.R. §121.665. 

41 The history of Part 121 does not disclose an intent to import the provisions of 

§121.665 into §121.693. See, e.g. Certification and Operations; Domestic, Flag, and Supplemental 

Air Carriers and Commercial Operators of Large Aircraft; Proposed Rule, 29 Fed. Reg. 12181 

(Aug. 26, 1964); Part 121- Certification and Operations; Domestic, Flag, and Supplemental Air 

Carriers and Commercial Operators of Large Aircraft [New]; Final Rule, 29 Fed. Reg. 19186 (Dec. 

31, 1964). 

42 

43 

44 

See Complainant's Brief at 12. 

AC 120-27E at 15. 

See Complainant's Brief at 14. 

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definition. Nor can it, given that it is a non sequitur45 The total weight of the aircraft, which 

must be 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 of the aircraft 

if an average weight program is used for a flight. For this 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 of the flights at issue here. 

Sky West does not deny that, as a certificate holder, "it is responsible for the preparation 

and accuracy of a load manifest form before each takeoff."46 However, in the consolidated cases 

the FAA did not allege that Sky West violated § 121.665. Rather, under the plain meaning of the 

sections of Part 121 that the FAA claims Sky West violated, the ALJ was correct in determining 

that no violations occurred. 

The Complainant's substantial reliance on In the Matter of Polynesian Airways, Inc. 47 is 

particularly misplaced. In Polynesian Airways, a Part 135 operator used aircraft empty weight 

data that he knew was inaccurate for purposes of completing the load manifest and weight and 

balance calculations. The data used was based on a weighing of the aircraft that the law judge 

found to be untrustworthy, and which had been superseded by a later weighing performed after 

the FAA asked that the aircraft be reweighed. 48 The judge determined that the operator violated 

§ 135.63(c)- the regulation that makes a Part 135 operator responsible for the "preparation and 

accuracy of a load manifest" - because "an operator cannot use an aircraft empty weight that he 

45 The Complainant purports 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 Polynesian Airways, Inc., FAA Order No. 94-40 (Dec. 9, 1994). 

!d. at 6. 

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knows is inaccurate."49 In affirming this aspect of the judge'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 of the violations."50 

The operator in Polynesian Airways used aircraft weight data that it knew was inaccurate. 

The data in question was fundamental to all weight and balance calculations, as it comprised the 

basic empty weight and center of gravity of the aircraft. Thus, the facts of that case were 

completely different than those presented here. They also demonstrate the difference between 

knowingly disregarding regulations pertaining to weight and balance (i.e., Polynesian Airways) 

and following the regulations but making inadvertent mistakes in tallying loads (Sky West). 

Moreover, the operator in that case was found to have violated the Part 135 regulation pertaining 

to its responsibility for the accuracy ofload manifests; the analogous Part 121 provision is not at 

issue here. Polynesian Airways does not support Complainant's arguments at all. 

The Complainant also misleadingly cites Administrator v. Angstadt, 51 by stating that it 

stands for the proposition that an ALJ did not err by finding a violation of § 121.693(a) when 

load manifest "incorrectly" indicated number of adults and children on flight. 52 That case did not 

involve a load manifest that indicated a total weight that was incorrect as a result of inadvertent 

human error, but one that was intentionally falsified in order allow an overweight flight to 

proceed. See Angstadt, 2008 WL 5373647 at *5 ("[T]he evidence establishes that respondent 

49 Id. at 11. See also id. (for frnding a violation, "[i]t is only necessary to recognize at 

the time of the 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 Brief at 11. 

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altered the load manifest so that it incorrectly included 30,000 pounds as the permissible 

maximum weight. ")53 

The ALJ' s determination that the Complainant failed to carry its burden of proof by a 

preponderance of evidence that Sky West violated 14 C.P.R.§§ 121.693(a), (c) and (d) was 

appropriate in light of the undisputed facts and correct as a matter of law. 

B. THE ALJ'S CIVIL PENALTY ASSESSMENT WAS IN ACCORDANCE 

WITH APPLICABLE LAW, PRECEDENT, AND PUBLIC POLICY. 

The Complainant ultimately has the burden of establishing that its proposed civil penalty 

is appropriate to the alleged violation54 A sanction proposed by the FAA is "no more than a 

proposal or a recommendation to the ALJ."55 The Complainant must show that it considered the 

seriousness of the violation and the totality of the circumstances, and prove to the ALJ how it 

used the sanction guidance to arrive at its proposal. 56 The Complainant must also prove the 

existence of aggravating factors and must show how it used aggravating or mitigating factors to 

adjust the suggested sanction. 

The appropriate sanction must be based on a totality of the circumstances, 57 including the 

nature, extent, and gravity of the violation, degree of culpability, history of prior violations, 

financial situation, and other matters as justice may require. 58 The ranges set forth in the FAA's 

53 Angstadt and 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 Polynesian Airways involved an alleged violation of§ 

135 .63( c), the regulation in Part 135 that addresses the accuracy of load manifests. 

54 In the Matter of Luxemburg, FAA Order No. 1994-18 (Jun. 22, 1994) at 6. 

55 In the Matter of Eastern Air Center, Inc., FAA Order No. 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 ofGoJet Airlines, LLC, Initial Decision (May 20, 2011) ("GoJet") at 8; 

quoting Folsom's Air Service, Inc. ("Folsom's") at II. 

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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 must be considered as a mitigating factor 61 The 

Administrator has 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 considered by the ALJ in his initial decision. 63 

Here, the Complainant failed to follow its own guidance and the applicable authorities 

when formulating its proposed civil penalty. It disregarded the totality of the circumstances and 

refused to consider the Respondent's corrective actions. In contrast, the ALJ correctly applied 

the framework of the FAA's sanction policy contained in Order 2150.3B. 

In each of the consolidated matters, the ALJ determined that the "evidence and testimony 

did not support the penalty requested."64 In reaching this conclusion, the ALJ analyzed these 

matters in light of the totality of the circumstances and took into account the Respondent's 

corrective actions as mitigating factors. In these 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 considered the totality of the 

circumstances and issued an award in line with the FAA's sanction guidance. 

Simply put, the ALJ calculated the civil penalty correctly and the Complainant did not. 

59 Eastern at 9. 

60 In the Matter of Pinnacle Airlines, Inc., Docket FAA-2009-0180, Initial Decision 

(Dec. 11, 2009) at 19. 

61 In the Matter of American Air Network, Inc., FAA Order No. 2006-5 (Feb. 10, 2006) 

at 7. 

62 In the Matter of AirtranAirways, Inc., Docket No. 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 penalties per 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 contrary to the prohibitions contained in 

Order 2150.3B, which provides that: 

When a single instance of noncompliance results in multiple violations of 

general and specific regulations involving the same or similar conduct, the 

FAA ordinarily does not compound the sanction .... "

65 

As the Administrator observed in an appeal from an ALJ' s assessment of a civil penalty, 

')udgment should be exercised in determining the seriousness of the violations and applying a 

sanction that will deter future violations by the violator or others similarly situated, i.e., the 

totality of the circumstances of the case should be considered. " 66 The ALJ exercised his 

judgment in precisely this manner. 

Section 119.5(g) provides, in pertinent part, 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 person may 

operate an aircraft under this part, part 121 of this chapter, or part 135 of this chapter in violation 

of an air carrier operating certificate, operating certificate, or appropriate operations 

specifications issued under this part. " 68 The ALJ determined that each of the flights at issue 

violated these 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, quoting FAA Order 2150.3B, Appendix 4. 

14C.F.R. § 119.5(g). 

14 C.F.R. § 119.5(1). 

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justify a civil penalty be assessed against Respondent for each subsection for each flight. 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 of reasons. 

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 correct in finding that the subsections were not significantly 

different for purposes of setting the civil penalty in these cases. Each of the violations alleged 

here involved the operation of an aircraft. The ramp workers were counting bags for the purpose 

of facilitating 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 with criminal double jeopardy, and is 

used to determine whether multiple charges under different statutes "require[ s] proof of an 

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 Blockburger test is a standard, 

69 

70 

71 

72 

See Initial Decision in FAA-2012-0872 at 44. 

I d. 

Blockburger v. United States, 284 U.S. 299 (1932). 

Id. at 304. 

73 See, e.g. In the Matter of Midtown Neon Sign Corp., CP94EA0057, 1996 WL 

509936, at 2 (Aug. 12, 1996) ("It has not been established that the Double Jeopardy Clause applies in 

civil penalty proceedings arising under the Federal hazardous material statute"). 

- 23 -
controlling practice and cites the Alphin Aircraft case

74 

as finding multiple violations where 

"there was an additional required fact for each violation the law judge found." 75 This statement 

is misleading, however, because the Complainant selectively truncates the first part of the 

sentence quoted, which reads, "Assuming, for the sake of argument, that the Double Jeopardy 

Clause applies in FAA civil penalty proceedings .... "

76 Alphin Aircraft does not stand for the 

proposition that the Blockburger test must be 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 demonstrated by 

the regulatory history of§ 119.5. Both subsections (g) and (I) were intended to address the same 

violation, but subsection (g) was intended to 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 

The proposal also added§ 119.5(1) which stated that, for safety purposes, 

people who operate aircraft under parts 121 and 13 5 must comply with the 

provisions in a certificate holder's operations specifications. This 

paragraph was proposed to prevent an employee of a certificate holder 

(with or without other certificate holder's knowledge) from violating the 

provisions of the certificate holder's operations specifications. For 

example, if a certificate holder is only authorized to carry cargo, a flight 

crewmember would not be allowed to bring along a friend as a passenger 

on the commercial flight. 77 

In the Matter of Alphin Aircraft; Inc., No. CP93EA0334, 1997 WL 93229 (Feb. 20, 

Complainant's Brief at 20. 

76 Alphin Aircraft at 5. In the Frosted Atelier case, also cited by Complainant, although 

the Blockburger test was applied, there is no statement that it is controlling. See In the Matter of 

Frosted Atelier, Inc., FAA 2013-5,2013 WL 5288992 at *8 (Sep. 5, 2013). 

77 Operating Requirements: Domestic, Flag, Supplemental, Commuter, and OnDemand Operations: Editorial and Other Changes; Final Rule, 62 Fed. Reg. 13248, 13248-49 (Mar. 

19, 1997). 

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Therefore, in the absence of§ 119.5(1), there would be no violation by an individual pilot who 

fails to comply with his or her employer's operational specifications. 78 

Accordingly, upholding the ALJ's determination that the distinction between the 

provisions was inconsequential does not require finding that one of the subsections is 

superfluous. 

2. The ALJ Properly Found The Violations to be Technical in Nature. 

In assessing the appropriate civil penalty to impose, the ALJ took into account the fact 

that the violations were technical in nature. This conclusion was correct based on the evidence 

introduced at trial. Sky West presented umebutted expert testimony that each of the flights at 

issue were operated within applicable weight and balance limitations and operational criteria. In 

accordance with the evidence, the ALJ determined that 

Significantly, the violations were technical in nature. They had no 

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

Sky West showed that in no instance was safety of flight at even the 

slightest risk. 79 

Each of the 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 of their weight and balance limitations, as the Complainant 

concedes. 

The Complainant's argument that this outcome was fortuitous is hyperbolic and not 

credible. The Complainant itself allows other airlines using standard average weights programs 

78 The Notice of Proposed Rulemaking explained the reason for adding 1 19.5(1) in even 

greater detail. See Operating Requirements: Domestic, Flag, Supplemental, Commuter, and OnDemand Operations: Editorial and Other Changes; Proposed Rule, 62 Fed. Reg. 5076, 5077 (Feb. 3, 

1997) ("One situation that was not adequately covered in the current provisions of part 119 ... is the 

situation where an employee of a certificate holder, with or without the certificate holder's 

knowledge, violates the provisions of the 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. 

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to apply buffers to baggage counts and weights such as, for example, in the case of one carrier, a 

20-bag/600-pound margin of error in tallying loads.80 

The FAA's sanction guidance calls for imposing a minimum sanction where, as here, the 

violations were technical in nature. 81 

3. The ALJ Properly Considered Respondent's Corrective Actions In 

Mitigation. 

A civil penalty may be reduced based upon corrective action where there is evidence of 

"swift or comprehensive action that is positive in nature, such as sending employees to special 

training or instituting programs to ensure compliance with the safety regulations." 82 By 

"positive," the Administrator means "action to prevent future violations from occurring."83 The 

Administrator has given significant weight to respondents' efforts to ensure that a violation will 

not recur. 84 Where remedial corrective action was not considered in the FAA's proposed 

sanction, it should be considered by the ALI in his initial decision. 85 

In line 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 suggestion that the "majority" of 

Sky West's response actions predated the flights at issue is disingenuous. It ignores the 

80 See Exhibit R-4. 

81 See Order 2150.3B at B-12, Fig. B-l-c(2). 

82 In the Matter of Ronald Haydon Whitley, FAA Order No. 2009-4 (Jan. 14, I 009) at 

21. 

83 See id. at 22 (citing In the Matter of Alika Aviation, 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 Airtran Airways, Inc., Docket No. F AA-201 0-0193, 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 of Sky 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 of Sky West's corrective actions, which included substantial improvements in 2011, 

the companywide implementation of SMS, and the development of amended weight and balance 

procedures in concert with the SMS program87 

The evidence of these 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 of the 

circumstances, 88 including the nature, extent, and gravity of the violation, degree of culpability, 

history of prior violations, financial situation, and other matters as justice may require. 89 In 

making his civil penalty calculations, the ALJ considered these elements and diligently applied 

the framework of Order 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 in nature, that there 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 it to $2,400. On appeal, 

the Administrator assessed an even lower civil penalty of $1 ,500. Citing the "lack of impact on 

safety," the Administrator determined that a $1,500 civil penalty was appropriate in light of FAA 

87 I d. 

88 Eastern at 9. 

89 GoJet at 8; quoting Folsom's at II. 

- 27-
sanction policy, the evidence in the record, and the totality of circumstances (i.e., nature of the 

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" 

in the context of"numerous multiple violations resulting from an initial act or omission," 

emphasizing that "[i ]t may be appropriate to select a civil penalty amount below the ranges in 

Figures 7-l or 7-2 if the degree of culpability is minimal, the degree of potential hazard is 

extremely low, and there are no other aggravating circumstances."91 That was the case here. 

The imposition of civil penalties lower than those sought by the 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, Unduly Harsh, 

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 of violations, assesses too high an amount per violation, and does not credit 

Respondent's mitigation measures. 

The Administrator "does not encourage the use of a mathematical formula to set a civil 

penalty" but rather encourages that civil penalties be assessed "based on a consideration of all 

relevant factors."92 In determining the appropriate penalty, "it is improper to take the 

mathematical, formulaic approach of multiplying the number of violations 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. 

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amount.93 Here, the Complainant's approach to calculating the civil penalty is defective because 

it ignores the technical nature of the violations, improperly seeks to compound penalties, and 

fails to properly take into account the totality of the circumstances and Respondent's corrective 

actions. As such, the Complainant's approach is unreasonable. Simply put, the ALJ conducted 

the analysis of the facts and totality of circumstances within the framework of FAA's sanction 

guidance that the Complainant refused to perform. 

An appropriate civil penalty "must reflect the totality of the 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 

consideration human limitations95 (), and has allowed other airlines to apply buffers to baggage 

counts, it has taken a strict liability approach to Sky West, and has refused to allow Sky West to 

amend its weight and balance program to address human performance issues.96 

Moreover, it is, at best, a matter of concern that the FAA is seeking a penalty for the 

same types of alleged violations that the ALJ adjudicated in prior 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 of this 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 of Ventura Air Services, Inc., FAA Order No. 2012-12 (Nov. 1, 

See FAA Order 9550.8, Human Factors Policy (eff. Oct. 27, 1993). 

See FAA-2011-0485/0486 andFAA-2011-0779, Tr. 112:19-22; 113:1-17. 

-29-
results. In the new matters, without justification the FAA increased the penalty it seeks from 

$33,000 per flight to $40,000 per flight. 

Instead of allowing Sky West to amend its weight and balance program to take advantage 

of margins of error afforded to other airlines, the Complainant positioned aviation inspectors at 

various airports throughout the country to sit and wait for arrivals of Sky 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 in these cases run 

directly contrary to its compliance philosophy. The ALJ, acting within his discretion and in 

consideration of the evidence presented to him, reached the right conclusions. 

CONCLUSION 

The findings and decisions of the ALJ are clearly supported by its findings of fact and 

conclusions of law. The civil penalties set by the ALJ were well within his discretion and 

supported by the 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. 

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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 

SkyWest Airlines, Inc. 

444 South River Road 

St. George, Utah, 84 790 

Telephone: (435) 634-3530 

Facsimile: (435) 634-3505 

Counsel for Sky West Airlines, Inc. 

- 31 -
CERTIFICATE OF SERVICE 

I hereby certify that on this date I have served by F edEx, postage prepaid, the original 

and two (2) copies of the foregoing Reply Brief of Respondent/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 2Wl 00 

I hereby certify this date I have served by FedEx, postage prepaid, and electronic mail a 

copy of the foregoing Reply Brief of Respondent/Appellee Sky West Airlines, Inc. addressed to: 

Peter J. Lynch 

Casey E. Gardner 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence A venue SW 

Washington, D.C. 20591 

Dated: November 18,2015 

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