RECE1VED 

OCT 1 0 2.012 

Todd C. Emerson, #8175 

444 South River Road 

HEARING DOCKET 

St. George, Utah, 84790 

Telephone: (435) 634-3530 

Facsimile: (435) 634-3505 

Attomey for SkyWest Airlines, h1c. 

In the Matter of: 

SkyW est Airlines, Inc. 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

· FAA DOCKET Not Assigned 

FAA Case No. 2011NM060049. 

·DMS No.FAA~2012-0776 

Judge: Richard C. Goodwin 

RESPONDENT'S RESPONSE TO COMPLAINANT'S INITIAL DISCOVERY 

REQUEST 

Respondent SKYWEST AIRLINES, INC. (hereinafter referred to as "Respondent"), by 

and through its undersigned counsel, objects and responds to Complainant's Initial Discovery 

Request, dated August 17, 2012. 

INTRODUCTION AND GENERAL OBJECTIONS 

This matter arises out of Sky West Airlines' weight and balance operations and practices 

on a flight which took place on March 17, 2011 (Flight 4729). 

Notice of Proposed Civil Penalty No. 2011NM060049. proposes ass~ssing a penalty of 

$50,000 for alleged violations of SP 4100, Part Xll. Specifically, Complainant has alleged that 
SkyWest: 

1. Operated as a direct air. carrier in violation of an appropriate operations specification; 

2. Operated aircraft under Part 121 in violation of its operations specifications; 

3. Operated flight with ballast bags imposing a load on the floor in excess of75 pounds per 

square foot. 

On its face, Complainant's Discovery is more than comprehensive, but rather excessive, 

and Respondent objects on the grounds that it is compound, complex, overly broad and unduly 

burdensome, transcends the bounds of reasonable discovery and in many instances, seeks 

infonnation which is already within Complainant's knowledge, care, custody and control. 

Complainant's discovery appears to have been crafted by Complainant's word and 

document processing capabilities, rather than by a genuine need for relevant and probative 

infonnation. As such, it appears that Complainant's Discovery has been propounded solely for 

the purpose of vexing and annoying Respondent. Complainant's statutory obligation is to 

determine, prior to initiating enforcement action, that such action is warranted. Complainant 

should not be free to initiate an enforcement action, and then, if challenged, use discovery as a 

substitute for the investigation that should have already been completed. 

It should be understood that Respondent's investigation is ongoing and continuing and 

Respondent reserves the right to supplement or amend these Responses as its investigation 

proceeds up through the time of hearing. Accordingly, these Responses should be considered 

tentative at best. 

Finally, Respondent in its Answer and Affirmative Defenses ("Answer") dated August 

13, 2012, has asserted numerous affirmative defenses and reserved the right to assert 

additionally, affirmative defenses as they arise. Notwithstanding any response or admission 

contained herein, Respondent reasserts each and every affirmative defense contained in its 

Answer, which Respondent incorporates herein by this reference as if fully set forth herein. 

INTERROGATORIES 

Interrogatory No. 1: Identify by name, address and telephone number all persons whom you 

know to have personal knowledge of the matters alleged in the Complaint. 

Respondent's Response: Individuals known to SkyWest that have lmowledge ofthe matters 

alleged in the Complaint are: 

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Maggi Aiken - Director CS Training 

Aaron Williams- Manager Compliance and Standards 

Jeremy Barclay- Director Safety Evaluation and Security 

Bill Bmce -Ramp Agent 

These individuals are SkyWest employees and can be contacted through SkyWest's counsel. 

On information and belief, the following FAA employees have knowledge of the matters alleged 

in the Complaint: 

Aaron J. Perkins- Aviation Safety Inspector 

Intenogatory No. 2: Identify by title, date, author, present custodian, and content, all documents, 

including coiTespondence, obtained by you or in your possession, relating to the asse1iions in the 

Complaint, your appeal, your answer, and any affirmative defenses which you anticipate raising 

in this matter. See Request for Production No. 1. 

Respondent's Response: To the extent that the Interrogatory seeks "documents, including 

coiTespondence ... relating to the assertions in the Complaint, your appeal, your answer, and any 

affinnative defenses which you anticipate raising in this matter" objection is made on the 

following grounds: 

a. CoiTespondence between SkyWest and its undersigned counsel is protected under the 

attorney-client privilege and will not be produced; 

b. The tenus "documents, including coiTespondence, relating to the assertions in the 

Complaint, your appeal, your answer, and any affirmative defenses which you 

anticipate raising in this matter" are overbroad and unduly burdensome, vague and 

ambiguous and uncertain; and 

c. To the extent that any of the documents sought to be identified and/or produced are in 

Complainant's care, custody or control, or have been originated by Complainant, 

objection is made as such documents are already within Complainant's knowledge. 

Without waiving the foregoing objections, the following documents are in the possession 

of SkyW est and/or have been obtained by SkyWest' s undersigned counsel: 

1. All documents or other materials and writings contained in the releasable portions of 

Complainant's EIRs including, but not limited to the Items ofProofwhich are made a 

part of said EIR's; 

2. SkyWest's counsel's notes and memoranda, protected under the attorney-client 

privilege and attorney work product doctrine; 

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3. Sky West Weight and Balance Operations Manual Standard Practice 41 00; 

4. Advisory Circular 120-27E; 

5. Operations Specification A098; 

6. SkyWest Weight and Balance Program; 

7. CLR' s for the flights in question; 

8. Load Manifests for the flights in question; 

9. Dispatch Releases for the flights in question; 

10. FAA ASI statements and repmis; 

11. SkyWest's responses to letters of investigation; 

12. SkyWest Customer Service Training Bulletin 2011-14, Designated Loading Agent 

Responsibilities; 

13. SkyWest Customer Service Training Bulletin 2011-04, [Updated] Aircraft Loading 

Procedures; 

14. Updated aircraft loading procedures to be incorporated into Station Operations 

Manual SP 5500 in Revision 18; 

15. Various Intemal Procedure Evaluations/ Audits; 

16. FAA Order 2150.3B; 

17. Bombardier CRJ Weight and Balance Manuals, 01-00-60, for the subject aircraft. 

Investigation and discovery are ongoing and continuing, and SkyW est reserves the right to 

amend and/or supplement these responses up through the date ofhearing. Finally, SkyWest 

reserves the right to utilize at hearing any document not listed above for purposes of 

impeachment. 

Intenogatory No. 3: Identify by name, address and telephone number, all persons whom you 

intend to have testify as a factual or expeli witness in your defense at the hearing in this matter, 

and for factual witnesses, provide a detailed summary of each person's anticipated testimony. 

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Respondent's Response: SkyWest contemplates calling those persons identified in its 

Response to Interrogatory 1 above. Summaries of their respective testimonies are set forth 

below: 

1. Maggi Aiken, SkyWest Director of Customer Service Training. Ms. Aiken will testify as 

to her communications with the FAA, and implementation of an initiative to ensure all 

SkyWest stations are physically staffed to allow one agent to directly account for the 

aircraft loading process on each SkyWest flight. Loading agent oversight in this initiative 

includes ensuring accurate physical baggage counts, cargo weights, and weight and 

balance communication with the flight deck crew. 

2. Jeremy Barclay, SkyWest Director of Safety Evaluation and Security. Mr. Barclay will 

testify as to his investigation of the discrepancies and avoiding future mishaps. 

3. Aaron Williams, SkyWest Manager Compliance/Standards. Mr. Williams will testify as 

to the implementation of an initiative to ensure all SkyWest stations are physically staffed 

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

flight. Loading agent oversight in this initiative includes ensuring accurate physical 

baggage counts, cargo weights, and weight and balance communication with the flight 

deck crew. 

Intenogatory No. 4: Identify by title, date, author, present custodian, and content, all documents 

which you anticipate offering into evidence at the hearing in this matter, and through which 

witness or witnesses the document will be offered. See Request for Production No. 2. 

Respondent's Response: 

See response to interrogatory #2 and #3, above. SkyWest has not yet determined which witness, 

or document, will be offered at trial. 

Interrogatory No. 5: With respect to each expert witness identified in response to Interrogatory 

No.3, specify their specific area of expertise, and provide a synopsis of their credentials, 

background, training and experience. 

Respondent's Response: 

SkyWest has not yet identified an expe1i for this case. 

Interrogatory No.6: With respect to each expert you expect to call as a witness, state the subject 

matter on which the expert is expected to testify, state the substance of the facts and opinions to 

which the expert is expected to testify, and provide summary of the grounds for each such 

opinion. 

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Respondent's Response: 

SkyWest has not yet identified an expert for this case. 

Interrogatory No. 7: Describe with specificity all of the facts which you anticipate presenting in 

the course of the hearing in this matter pertaining to the avoidance or mitigation of the sanction 

sought by the FAA in this case. 

Respondent's Response: 

SkyWest will present evidence that the employees involved received discipline and trainjng in 

conjunction with the alleged events. Other evidence will show that safety was never 

compromised and the aircraft was inspected before it was returned to service and found to be 

undamaged by the alleged violation. 

Interrogatory No.8: State by name, address, telephone number, date of conversation, and 

substance of conversation, all persons, other than legal counsel or your spouse, with whom you 

have discussed the matters alleged in the Complaint. 

Respondent's Response: 

Object to the term "you" as vague, ambiguous and overly burdensome when the respondent is a 

corporation with over 10,000 employees. 

Interrogatory No. 9: For each allegation in the Complaint that is denied- whether outright or as 

a result of having sufficient infonnation or knowledge from which to fonn a belief as to the tmth 

of the allegation - state with specificity the facts that are the basis for that denial as well as the 

inquiries taken to detern1ine that the allegation in the complaint is not correct. See Request for 

Production No.3. 

Respondent's Respo1~ 

Paragraph 8 ofthe Complaint: is denied because it misstates the language found in SkyWest's 

W &B manual, Chapter 4, paragraph 6.B.4. 

Paragraphs 11-14 of the Complaint: Sky West has been unable to verify, through its own 

investigation, the FAA's contention that SkyWest persmmel in MFR loaded eleven 50 lb ballast 

bags on N464SW, that five such bags were stacked on top of each other, that more than 75 

pounds per square inch was imposed on the floor, or that the bags had the approximate length 

and width of22" x 13". The specificities of the inquiries and investigation are subject to the 

attorney-client privilege. 

Interrogatory No. 10: For any of the request for admission below that is denied, state with 

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specificity the facts that are the basis for that denial as well as the inquiries taken to determine 

that the facts in the request for admission are not correct. See Request for Production No. 4. 

·Respondent's Response: 

Every request for admission containing the following "Admit that a violation in FAA Case No. 

000 involved Sky West loading cargo contrary to approved procedures in SkyW est's OpSpecs" 

is flawed where SkyW est and the FAA compromised the claim without finding fault or violation, 

where SkyW est did not load cargo, where no evidence of a loading violation was ever developed 

or any particular section of the OpSpecs was alleged or found in violation. The common 

"violation" in those cases is failing to have a cargo load report I manifest match the actual cargo 

onboard- a condition not alleged in the present case. 

Interrogatory No. 11: Describe with specificity all facts or evidence you intend to rely upon in 

support of any affirmative defenses raised in any Answer to the Complaint, to include identifying 

the specific FAA policy you claim is violated by the proposed penalty in these cases. See 

Request for Production No.5. 

Respondent's Response: 

FAA Order 2150.3B is violated by the claimant's proposed sanction. Here, the maximum 

sanction cannot exceed $27,500 yet the FAA has proposed a $50,000 fine without basis. Order 

2150.3B instructs counsel and the CMO to examine the totality of the circumstances, 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. In the present matter, SkyW est is a 

"Group 1" carrier because its mmual revenues exceed $100 million. The sanction guidance for 

Group 1 caniers sets forth the following ranges: 

Maximum 

Moderate 

Minimum 

$18,750- $25,000 (Now inflation-adjusted to $27,500) 

$10,000- $18,749 

$2,000 - $9,000 

The only way to reach $50,000 is by alleging multiple violations and asserting a violation 

history. The FAA routinely cites all regulations which may support its allegations. However, 

ALJ s and the Administrator have stated that the sanction should not be a mathematical addition 

of the number of alleged violations. Here, the FAA has used the same set of facts to find 

multiple violation and has admitted that there is no comparable violation history. Further, it is 

not alleged that safety of flight wa,s compromised. There is evidence of mitigation by the carrier. 

If there iq a violation, the correct application of FAA Order 2150.3B is a penalty in the minimum 

range. 

REQUESTS FOR PRODUCTION 

Request for Production No. 1: Provide a copy of all documents referred to in your answer to 

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Interrogatory No. 2 

Respondent's Response: 

N/A 

Request for Production No. 2: Provide a copy of all documents referred to in your answer to 

Interrogatory No.4. 

Respondent's Response: 

N/A 

Request for Production No. 3: Provide a copy of all documents that support your answer to 

Interrogatory No.9. 

Respondent's Response: 

N/A 

Request for Production No.4: Provide a copy of all documents that support your answer to 

Interrogatory No. 10. 

Respondent's Response: 

Request for Production No. 5: Provide a copy of all exhibits that support your answer to 

Interrogatory No. 11. 

Respondent's Response: 

Certainly the FAA has a copy of Order 2150.3B. Beyond the Order itself, Sky West has not yet 

detennined what exhibits it may offer in support of its affim1ative defenses. 

REQUEST FOR ADMISSIONS 

Request for Admission No. 1: Admit that, for the 12 month period ending December 2011, 

Sky West Airlines had operating revenues in excess of $100 million, as shown by the Airline 

Quarterly Financial Review (4th Quarter 2011) published by the Department of Transportation, 

Office of Aviation Analysis, Competition and Policy Analysis Division. 

Respondent's Response: Admit. 

Request for Admission No.2: Admit that, as of December 31, 2011, SkyWest Airlines employs 

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more than 1,500 employees, as shown by SkyWest Airlines' 2011 Annual Report. 

Respondent's Response: Admit. 

Request for Admission No. 3: Admit that Sky West Airlines has the financial ability to pay the 

$50,000 requested civil penalty in FAA Case No. 2011NM060049, FDMS No. FAA-2012-0776. 

Respondent's Response: Admit. 

Request for Admission No.4: Admit that at all times relevant to the Complaint, the SkyWest 

W &B Manual (Standard Practice 4100, Part XII, revision Orig of 1 APR 1 0), Chapter 4, 

paragraph 6.B.4 contained a caution substantially similar to: 

.• CAUTION - When loading ballast, the CS ground operations 

agent verifies ballast does not ex.ceed floor bearing weight limit. 

Respondent's Response: Admit. 

Request for Admission No.5: Admit that from September 22, 2011 to present, the SkyWest 

W &B Manual (Standard Practice 4100, Part XII, revision 01 of 22 SEP 11 ), Chapter 4, 

paragraph 6.B.4 contains a caution substantially similar to: 

A WA1RNING- !NAC:CIJRATE !..:OADlNG, REPORTING, OR 

FAILURE TO REPORT l~fFO'RMAT!ON COULD CAUSE JUiiJES 

VVfTH ,ilJRGRAFT PERFORMA~JCE AND HANDUt4G, RESULnNG 

lN WIE ENDl\NGERMEiNT OF HUf,tAN UFE. '''''" """"'"''''''''''"''''"''"m'"''"'''' ''""' ''''"''''""'"""' 

Respondent's Response: Admit. 

Request for Admission No.6: Admit that the Cargo Load Report for Flight 4729 ofMarch 17, 

2011 reflects the loading of 550 potmds of ballast aboard the flight in the aft cargo bin. 

Respondent's Response: Admit. 

Request for Admission No.7: Admit that the 550 pounds ofballast aboard Flight 4729 of March 

17, 2011 took the form of 50 pOtmd ballast bags. 

Respondent's Response: Admit. 

Request for Admission No.8: Admit that two or more 50 pound ballast bags were stacked on 

top of each aboard for Flight 4 729 of March 17, 2011. 

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Respondent's Response: Admit. 

Request for Admission No.9: Admit that at all times relevant to the Complaint SkyWest's 

W &B Manual (Standard Practice 4100, Part XII, revision Orig of 1 APR 1 0) prohibited stacking 

50 pound ballast bags on top of each other. 

Respondent's Response: Admit. 

Request for Admission No. 10: Admit that tru:ee SkyWest 50 pound ballast bags stacked atop 

each other would exceed the floor loading limit of the aft cargo bin ofN464SW. 

Respondent's Response: Object and deny on the basis of vagueness as to "floor loading limit." 

Request for Admission No. 11: Admit that SkyWest paid a civil penalty in FAA Case No. 

2009NM060023. 

Respondent's Response: SkyWest paid a reduced penalty in FAA Case No. 2009NM060023. 

Request for Admission No. 12: Admit that a violation in FAA Case No. 2009NM060023 

involved SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. 

Respondent's Response: Denied. 

Request for Admission No. 13: Admit that SkyWest paid a civil penalty in FAA Case No. 

2009NM060050. 

Respondent's Response: SkyWest admits it paid a reduced penalty in FAA Case No. 

2009NM060050. 

Request for Admission No. 14: Admit that a violation in FAA Case No. 2009NM060050 

involved SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. 

Respondent's Response: Denied. 

Request for Admission No. 15: Admit that SkyWest paid a civil penalty in FAA Case No. 

2009NM060 124. 

Respondent's Response: SkyWest admits it paid a civil penalty in FAA Case No. 

2009NM060124. 

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Request for Admission No. 16: Admit that a violation in FAA Case No. ~009NM060124 

involved SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. 

Respondent's Response: Denied 

Request for Admission No. 17: Admit that SkyWest paid a civil penalty in FAA Case No. 

201 ONM060020. 

Respondent's Response: SkyWest admits it paid a civil penalty in FAA Case No. 

201 ONM060020. 

Request for Admission No. 18: Admit that a violation in FAA Case No. 2010NM060020 

involved SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. 

Respondent's Response: Denied. 

Request for Admission No. 19: Admit that SkyWest paid a civil penalty in FAA Case No. 

2010NM060068. 

Respondent's Response: SkyWest admits it paid a reduced civil penalty in FAA Case No. 

2010NM060068. 

Request for Admission No. 20: Admit that a violation in FAA Case No. 2010NM060068 

involved SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. 

Respondent's Response: Denied. 

Request for Admission No. 21: Admit that SkyWest paid a civil penalty in FAA Case No. 

2010NM060076. 

Respondent's Response: SkyWest admits they paid a reduced civil penalty in FAA Case No. 

201 ONM06007 6. 

Request for Admission No. 22: Admit that a violation in FAA Case No. 2-1-NM060076 

involved SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. 

Respondent's Response: Denied. 

Request for Admission No. 23: Admit that SkyWest paid a civil penalty in FAA Case No. 

2010NM060100. 

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Respondent's Response: SkyWest admits it paid a reduced penalty in FAA Case No. 

2010NM060100. 

Request for Admission No. 24: Admit that a violation in FAA Case No. 2010NM060100 

involved SkyW est loading cargo contrary to approved procedures in SkyW est's OpSpecs. 

Respondent's Response: Denied. 

Request for Admission No. 25: Admit that SkyWest paid a civil penalty in FAA Case No. 

2010NM060106. 

Respondent's Response: SkyWest admits it paid a reduced penalty in FAA Case No. 

2010NM060106. 

Request for Admission No. 26: Admit that a violation in FAA Case No. 2010NM060106 

involved SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. 

Respondent's Response: Denied. 

DATED this 28th day of September, 2012. 

Todd C. Emerson 

Attorney for Sky West Airlines 

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