# RECE1VED OCT 102.012
Todd C. Emerson, #8175 444 SouthRiverRoad 

# HEARING DOCKET

St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505 Attomey for SkyWest Airlines, h1c.

In the Matter of:

SkyWest Airlines, Inc. UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

·FAADOCKETNot Assigned

FAA CaseNo. 2011NM060049. ·DMS

### No.FAA~2012-0776 Judge: Richard C. Goodwin

RESPONDENT'S RESPONSE TO COMPLAINANT'S INITIAL DISCOVERY REQUEST Respondent SKYWEST AIRLINES, INC. (hereinafterreferred 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 ofSky West Airlines' weight andbalance operations and practices

on a flight which tookplace onMarch 17, 2011 (Flight 4729). Notice ofProposed CivilPenaltyNo. 2011NM060049.proposes

# ass~ssing a penalty of $50,000 for alleged violations ofSP4100, Part

### Xll. Specifically, Complainant has alleged thatSkyWest: 1. Operated as a direct air. carrier in violation ofan appropriate operations specification; 2. Operated aircraftunder Part 121 inviolation ofits operations specifications; 3. Operated flight withballast bags imposing a load on the floor in excess of75 pounds per square foot. On its face, Complainant's Discovery is more than comprehensive, butrather excessive, and Respondent objects onthe grounds that it is compound, complex, overlybroad and unduly burdensome, transcends the bounds ofreasonable 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 craftedby Complainant's word and document processing capabilities, rather thanby a genuine need for relevant andprobative infonnation. As such, it appears that Complainant's Discoveryhas beenpropounded solely for the purpose ofvexing and annoying Respondent. Complainant's statutory obligationis to determine, prior to initiating enforcement action, that such action is warranted. Complainant should notbe free to initiate an enforcement action, and then, ifchallenged, use discovery as a substitute for the investigation that should have already been completed. It shouldbe 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 ofhearing. Accordingly, these Responses shouldbe considered tentative at best. Finally, Respondent in its Answer and Affirmative Defenses ("Answer") dated August 13, 2012, has asserted numerous affirmative defenses andreserved the right to assert additionally, affirmative defenses as they arise. Notwithstanding any response or admission containedherein, Respondent reasserts each and every affirmative defense contained in its Answer, whichRespondent incorporates hereinbythis reference as iffully set forth herein. INTERROGATORIES InterrogatoryNo. 1: Identifybyname, address and telephone number allpersons whomyou know to havepersonal knowledge ofthe matters alleged inthe Complaint. Respondent's Response: Individuals known to SkyWest that have lmowledge ofthe matters alleged in the Complaint are:

2Maggi Aiken

- Director CS Training Aaron Williams- Manager Compliance and Standards JeremyBarclay- Director SafetyEvaluation and Security Bill Bmce -Ramp Agent These individuals are SkyWest employees and canbe contacted through SkyWest's counsel. On information and belief, the following FAA employees have knowledge ofthe matters alleged in the Complaint: Aaron J. Perkins- Aviation Safety Inspector IntenogatoryNo. 2: Identify bytitle, date, author, present custodian, and content, all documents, including coiTespondence, obtainedby you orinyourpossession, 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 ProductionNo. 1. Respondent's Response: To the extentthat 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 inthis matter" objection is made onthe following grounds:

a. CoiTespondence between SkyWest and its undersigned counsel is protectedunder the attorney-clientprivilege and will not beproduced; 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 undulyburdensome, vague and ambiguous and uncertain; and

c. To the extent that any ofthe documents sought to be identified and/orproduced 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 ofSkyWest 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 ofsaid EIR's; 2. SkyWest's counsel's notes and memoranda, protectedunder the attorney-client privilege and attorney workproduct doctrine;

33. Sky West Weight and Balance Operations Manual StandardPractice 4100;
4. Advisory Circular 120-27E; 5. Operations Specification A098; 6. SkyWestWeight and Balance Program; 7. CLR's for the flights in question; 8. Load Manifests for the flights in question; 9. DispatchReleases for the flights in question; 10. FAA ASI statements and repmis; 11. SkyWest's responses to letters ofinvestigation; 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 inRevision 18; 15. Various Intemal Procedure Evaluations/ Audits;
16. FAA Order 2150.3B; 17. Bombardier CRJ Weight and BalanceManuals, 01-00-60, for the subject aircraft. Investigation and discovery are ongoing and continuing, and SkyWest 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.

IntenogatoryNo. 3: Identify byname, 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 ofeachperson's anticipatedtestimony.

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### Respondent's Response: SkyWest contemplates calling those persons identified in its Response to Interrogatory 1above. Summaries oftheir respective testimonies are set forth below:



### 1. Maggi Aiken, SkyWest Director ofCustomer Service Training. Ms. Aikenwill testify as to her communications with the FAA, and implementation ofan 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. JeremyBarclay, SkyWestDirector ofSafety Evaluation and Security. Mr. Barclaywill testify as to his investigation ofthe discrepancies and avoiding future mishaps. 3. Aaron Williams, SkyWest Manager Compliance/Standards. Mr. Williams will testify as to the implementation ofan initiative to ensure all SkyWest stations are physically staffed to allow one agent to directly account for the aircraft loadingprocess on each SkyWest flight. Loading agent oversight in this initiative includes ensuring accurate physical baggage counts, cargo weights, and weight and balance communication withthe flight deck crew. IntenogatoryNo. 4: Identifybytitle, date, author, present custodian, and content, all documents which you anticipate offering into evidence at the hearing inthis matter, and through which witness or witnesses the document willbe offered. See Request for ProductionNo. 2. 

### Respondent's Response: Seeresponse to interrogatory #2 and #3, above. SkyWest has not yet determined which witness, or document, will be offered at trial. InterrogatoryNo. 5: With respect to each expert witness identified inresponse to Interrogatory No.3, specify their specific area ofexpertise, and provide a synopsis oftheir credentials, background, training and experience. 

### Respondent's Response: SkyWest has not yet identified an expe1i for this case. Interrogatory No.6: Withrespect 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 ofthe facts and opinions to whichthe expert is expected to testify, and provide summaryofthe grounds for each such opinion.

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### Respondent's Response: SkyWest has not yet identified an expert for this case. InterrogatoryNo. 7: Describe with specificity all ofthe facts which you anticipate presenting in the course ofthe hearing inthis matterpertainingto the avoidance ormitigation ofthe sanction sought bythe 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 safetywas never compromised and the aircraft was inspectedbefore it was returned to service and found to be undamaged by the alleged violation. InterrogatoryNo.8: State byname, address, telephone number, date ofconversation, and substance ofconversation, all persons, otherthan 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 overlyburdensome when the respondent is a corporation with over 10,000 employees. Interrogatory No. 9: For each allegation inthe Complaint that is denied- whether outright or as a result ofhaving sufficient infonnation or knowledge from which to fonn 

### abeliefas to the tmth ofthe allegation

- state with specificity the facts that are thebasis for that denial as well as the inquiries taken to detern1ine that the allegation inthe complaint is not correct. See Request for ProductionNo.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 ofthe Complaint: Sky Westhas beenunable to verify, through its own investigation, the FAA's contention that SkyWestpersmmel inMFR loaded eleven 50 lb ballast bags on N464SW, that five such bags were stacked on top ofeach 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 ofthe inquiries and investigation are subject to the attorney-client privilege.
Interrogatory No. 10: For any ofthe request for admissionbelow that is denied, state with

6specificity the facts that are the basis for that denial as well as the inquiries taken to determine that the facts inthe request for admission are not correct. See Request for ProductionNo. 4. 

### ·Respondent's Response: Everyrequest for admission containing the following "Admitthat a violation inFAA Case No. 000 involved Sky West loading cargo contrary to approved procedures in SkyWest's OpSpecs" is flawed where SkyWest and the FAA compromised the claim without finding fault orviolation, where SkyWest did not load cargo, where no evidence ofa loading violation was ever developed or any particular section ofthe OpSpecs was alleged or found inviolation. The common "violation" in those cases is failing to have a cargo loadreport 

### 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 ofany affirmative defenses raised in anyAnswer to the Complaint, to include identifying the specific FAApolicy you claim is violated bythe proposed penalty inthese cases. See Request for Production No.5. 

### Respondent's Response: FAA Order 2150.3B is violated bythe claimant's proposed sanction. Here, the maximum sanction cannot exceed $27,500 yet the FAAhas proposed a $50,000 fine without basis. Order 2150.3B instructs counsel and the CMO to examine the totality ofthe circumstances, including the nature, extent, and gravity ofthe violation, degree ofculpability, history ofprior violations, financial situation, and other matters as justicemay require. In the present matter, SkyWest 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 wayto reach $50,000 is by alleging multiple violations and asserting a violation history. The FAAroutinely cites all regulations which may support its allegations. However, ALJs and the Administrator have stated that the sanction should notbe a mathematical addition ofthe number ofalleged violations. Here, the FAAhas used the same set offacts to find multiple violation and has admitted that there is no comparable violation history. Further, it is not alleged that safety offlight wa,s compromised. There is evidence ofmitigationbythe carrier. Ifthere iq a violation, the correct application ofFAA Order 2150.3B is a penalty in the minimum range. REQUESTS FORPRODUCTION Request for Production No. 1: Provide a copy ofall documents referred to in your answer to

7InterrogatoryNo. 2 Respondent's Response: N/A Request for Production No. 2: Provide a copy ofall documents referred to in your answer to Interrogatory No.4. Respondent's Response: N/A Request for ProductionNo. 3: Provide a copy ofall documents that support your answer to InterrogatoryNo.9. Respondent's Response: N/A Request for ProductionNo.4: Provide a copy ofall documents that support your answer to InterrogatoryNo. 10. Respondent's Response:
Request for Production No. 5: Provide a copy ofall exhibits that support your answer to InterrogatoryNo. 11. Respondent's Response: Certainly the FAAhas a copy ofOrder 2150.3B. Beyond the Order itself, Sky West has not yet detennined what exhibits it may offer in support ofits affim1ative defenses. REQUEST FORADMISSIONS 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 bythe Airline QuarterlyFinancial Review (4th Quarter 2011) publishedbythe Department ofTransportation, Office ofAviation Analysis, Competition and Policy Analysis Division. Respondent's Response: Admit. Request for AdmissionNo.2: Admit that, as ofDecember 31, 2011, SkyWest Airlines employs



### 8more than 1,500 employees, as shownbySkyWest Airlines' 2011 Annual Report. 

### Respondent's Response: Admit. Request for Admission No. 3: Admit that Sky West Airlines has the financial abilityto pay the $50,000 requested civil penaltyin 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 AdmissionNo.5: Admit that from September 22, 2011 to present, the SkyWest W&B Manual (Standard Practice 4100, Part XII, revision 01 of22 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 of550 potmds ofballast 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 ofMarch 17, 2011 took the form of50 pOtmd ballastbags. 

### Respondent's Response: Admit. Request for AdmissionNo.8: Admit that two or more 50 poundballast bags were stacked on top ofeach aboard for Flight 4729 ofMarch 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, PartXII, revision Orig of 1APR 1 0) prohibited stacking 50 pound ballast bags on top ofeach other. Respondent's Response: Admit. Request for Admission No. 10: Admit that tru:ee SkyWest 50 poundballast bags stacked atop each other would exceed the floor loading limit ofthe aft cargo bin ofN464SW. Respondent's Response: Object and deny on the basis ofvagueness 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 penaltyin 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 inFAA 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. 2009NM060124. Respondent's Response: SkyWest admits itpaid a civil penaltyinFAA Case No. 2009NM060124.

10Request 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. 201ONM060020. Respondent's Response: SkyWest admits it paid a civil penalty in FAA Case No. 201ONM060020. 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 SkyWestpaid a civil penaltyin FAA Case No. 2010NM060068. Respondent's Response: SkyWest admits it paid a reduced civil penalty inFAA Case No. 2010NM060068. Request for Admission No. 20: Admit that a violation inFAA Case No. 2010NM060068 involved SkyWest loading cargo contraryto approved procedures in SkyWest's OpSpecs. Respondent's Response: Denied. Request for Admission No. 21: Admit that SkyWestpaid a civil penalty in FAA Case No. 2010NM060076. Respondent's Response: SkyWest admits theypaid a reduced civil penalty in FAA Case No. 201 ONM060076. Request for Admission No. 22: Admit that a violation inFAA Case No. 2-1-NM060076 involved SkyWest loading cargo contraryto approved procedures in SkyWest's OpSpecs. Respondent's Response: Denied.
Request for Admission No. 23: Admit that SkyWestpaid a civil penalty in FAA Case No. 2010NM060100.

11Respondent'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 SkyWest loading cargo contrary to approved procedures in SkyWest's OpSpecs. Respondent's Response: Denied.
Request for Admission No. 25: Admit that SkyWest paid a civil penaltyin 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 ofSeptember, 2012.

Todd C. Emerson Attorney for SkyWestAirlines

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