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JEFFREY M. HARPER. 

FAA. OFFICE OF REGIONAL COUNSEL 

1601 LIND A VENUE SOUTHWEST 

RENTON, WASHINGTON 98057 

TELEPHONE: (425) 227-2161 

I q ;..\ 10: 1.t8 6 FACSIMILE: (425) 227-1007 

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UNITED STATES OF AMERICA 

DEP ART~fE ~T OF TRANSPORTATION 

OFF CE OF HEARINGS 

W; SHINGTON, D.C. 

In the Matter of: 

Cornerstone Aviation, Inc. 

To: Honorable Richard C. Goodwin: 

DMS No. FAA"2011-0481 

DMS No. FAA-2011-0484 

DMS No. FAA--2011-0489 

MOTJON TO STRIKE 

Judge Richard C. Qoodwin 

COMPLAil' ANT'S MOTION TO STRIKE 

In accordance with 1.4 C.F.'R. § 13.220 f)(4) (Ru.le 13.220(f)(4)) Complainant moves that tl~e 

ALJ strike· Respondent's Reply Brief t the extent it argues facts not in evidence or .irrelevant 

facts. 

Procedural History 

40 The Complaint in case DMS No. FAA 2011-048.1 was filed on May 18,2011. The Complaint 

41 .alleged Respondent failed ~o comply VI ith its approved training course, a violation of 14 C.P.R. ~2 

4.3 §141.83(a)(l) by starting a student~ Mx. Stann, on the instrument I commercial training .course 

4 4 when he did not meet the prerequisites for that course. It also alleged Respondent failed to 

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maintain an accura,.te record of the date Mr. Stann was enrolled in that course, a violation of 

14 C.P.R.§ 14l.l01(a)(l). 

49 On December 8, 2011., tb.e Department ofTran.sportation~ Offi.ce of Hearing (Court) entered an 

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51 Order granting Complainant's Motion ~='or Limited Summary Judgment in case FAA-2011~0481, 

s2 · fi.:o.ding that the violations charged had been established, and limiting the hearing to the question 

53 of sanction. 

Complainant's Motion to Strike . 

Cornerstone Aviation, Inc.- FAA-20l.l.-0481, FN .-2011-0484, 

FAA-2011-0489 . 

Page 1 ofS 

JEFFREY M. HARPER, FAA ATTORNF.Y 

TEJ.,; (42S) 227-2l6l; FAX: (42S) 227·1 007 
07/12/2012 07:53 4252271007 ANM7 PAGE 03/11 

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The Complaint in case DMS No. F AA-20 11-0484 was filed on. May 26,. 2011. It alleged 

Respondent did not comply with its approved training course, did not maintain current and 

ace mate records of the participation of an enrolled student, graduated a student who had not 

~ompleted the curriculum, and issued a. graduation certifl.cate to that student, violations of 

14 C.P.R.§§ 141.77(a)(l), 14L77(b), 141.83(a)(l), and l41.101(a). The violations stemmed 

from a student who had had not completed. ground school under Part 141. 

On October 28, 2011, the Court entered an Order granting Complain6llt's AJ.temative Motion for 

Summary Judgment I-:1ereafter Limiting Hearing to Sanction in case F AA~20 11-0484, fifJding that 

the violations charged had been established, and limiting the hearing to the question of sa1.1ction. 

The Complaint in case DMS No. FAA-2011-0489was fUed on June 16,2011. The Complaint 

was ainended on July 13, 2011. As amended, the Complaint alleged Respondent issued a ' . . . 

graduating certificate that did not contain the graduate's name, failed to maintain a current and 

accmate record of a student.'s participation in training, and failed to certify a_student's. record. a:t. 

the end of training~ violations of"14 C.P.R.§ l4J..95(b)(2), 141.101(a), and 141.101(c). 

On. December .8, 2011, the Col.U't entered an Order granting Compl.ain~t's Motion for Limited 

SUimnary Judgment in case FAA-2011-0489, finding that the violations charged had bMn 

.established, ·and limiting the-hearing to the question of sanction .. 

On October 6, 2011, the: Court entered an Order consolidating these three matters for hearing. 

The hearing on san.cti.on only was held March 12, 2012 in Salt Lake City, Utah. · 

The transcript from the hearing becam~ available to undersigned counsel on Apri13, ~012. 

Complainant's post-trial briefwas served Apri.l20, 2012. Respondent's Reply was served July 3, 

2012. 

Argument 

Respondent's reply brief contains facts not in evidence as well as irrelevant facts. To the extent 

the brief contains such material, it should be stricken. 

Facts not in Evidence 

''Unsubstantiated and unsupported factual allegations .... in briefs d.o not constitute evidence." In 

the Matter ~[Northwest Airlines, Jnc.~ FAA Order No. 1998-22 at 5, (December 7, 1998). A 

comparison of Respondent's Briefwith the record in the case shows that Respondent has asserted 

a ri.um.ber of facts that ate riot i.n the record. This examination is complicated by the complete 

failure of Respondent to cite to the record when asserting facts. 

Complainant's Motion to Strike . 

Cornerstone Aviation, T.nc.- FA.A.-2011·0481, FA.A.-2011·0484, 

FAA-2011·0489 

Page 2 of5 

JEFFREY M. 1-JARPE~ FAA A TTORNBY 

TEL! (425) 227·2161; FAX: (425) 227·1007 
07/12/2012 07:53 4252271007 ANM7 PAGE 04/11 

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·As an example, Respondent asserts that Comerstone needs to put funds aside to purchase 

engines; that one engipe costs approximately $30,000, that on.e was replaced this year, an.d tl1at 

two will need to be replaced next year. Respondent's Brief at 3. None of these facts are found in 

the record. 

Likewise. Respondent assets it has an SBA loan of$170~000 and a line of credit. Respondent's 

Brief at 3. 

While these things may be true~ Respondent failed to present this information at hearing. To 

present it now deprives Complainant of its right to call witnesses and present evidence to rebut. 

those facts and the implication Respondent is unable to pay the proposed sanctions. 

Irrelevance 

The question of liability h.as been·established in each ofthese cases. This Court's orders of 

October 28 and December 8, 2011 found that the violations alleged had been established and. the 

only remaining question for hearing was an appropriate sanction. Re~pondent' s Brief, in part, 

argues that the violations did not occur. For. instance, tlJ.e second paragraph of numbered 

section. 1 discusses Respondent~s enrollm.en.t records, concluding 11There is no violation here." 

As the Court detennined the violations occurred, thi.s section of the brief is irrelewant. 

In case DMS No. FAA-2011-048l;Respondent argues SLCC maintained the en.ro11ment records. 

This may be true, but 14 C.F.R. § 14l.10l(a) requires the certificate holder to maintain the 

ernollment record, not the affiliate. The fact that a business partner of the certificate holder · 

might also maintain enrollment tecords for its own purposes is. irrelevant to ~he question of what 

sanction is appropriate when the certificate holder fails to maintain the required record. 

.As another example, Respondent states that its fo:rr.r.u~r instructor has gone on to become a pilot 

for a cargo carrier. 11Je cw:rentjob of the form.er employee of a flight school has zero bearing on 

what an appropriate sanction would be for a FAR violation committed by the flight school. 

Complainant"s Motion t.o Stri.'k~ 

Comerstone Aviation, Inc. - F AA-20 ll-0481, F AA-20 11-0484, 

F AA·20 11-0489 . 

Page 3 of S 

JEI!'I"ruiY M. HARPER, FAA ATTORNEY 

TEJ .. : (425) 227-2161; FAX: (425) 227-1007 
07/12/2012 07:53 

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4252271007 ANM7 

Conclusion 

: · Respondent's Reply Brief asserts facts not in. evidence and argues irrelevant materiaL 

e> THEREFORE, Complainant requests tl1at the Court issue an Order striking the Reply Brief. 

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8 DATED this 12th day ofJuly, 2012. 

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J ef: . y M. 

--~-~ Harper 

FAA Attorney 

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PAGE 05/11 

Complainant's Motion to Strike 

Cornerstone Aviation, lnc.- FAA"20ll-0481, FAA-2011·0484, 

FAA-20ll-0489 

Page 4 ofS 

J:F.Jm.Ey M. HARPER, F M ATTORNEY 

TEJ.,; (42r 227-2161; FAX: (425) 221-1007 

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CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Complainant's Brief has been serv d via facsimile and 

Certi.fi.ed Mail - Return Receipt Requested this date, to the following 

Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, ·Rm El2-320 

Washington. D.C. 20590 

FAX: 202.366.7536 

Attn: Hearing Docket Clerk, AGC-430 

Wilbm· Wright Building- Suite 2W1000 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington;D.C. 20591 

FAX: 202.493.5020 

I hereby certify that the foregoing Complaillant's Brief has been serv d via Ovemi.ght Courier, 

First Class, and Certified ~ Return Receipt Requested Mail this date~ to the following: 

Susan Horstman· 

ChiefExecutive Offi.cer 

Cornerstone Aviation, Inc. 

337'North 2370 West #130 

Salt Lake City, UT 84116 

I 

3a Dated this 12th, day of July, 2012. 

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Complainant's Motion to Strike , 

Cor:nerstone Aviation, Inc.- FAA-2011·0481, FAA-2011·0484, 

PAA-2011·0489 

Page 5 of5 
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JEFFREY M. HARPER 

FAA OF.F'lCE OF REGIONAL COt!NSEL 

1601 LIND AVENUE SOUTHWEST 

RENTON, WASHINOTON 98057 

TELEPHONE: (425) 227~2161 

FACSIMILE; (425) 227-1007 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASH~GTON, i>.C. 

In tbe Matter of: 

Cornerstone Avia.tion, Inc. 

To: Honorable Richard C. Goodwin: 

DMS No. FAA-2011-0481 

DMS No. FM-2011-0484 

DMS No. FAA.-2011-0489 

REBUTTAL BRJEF 

. Judge Richard C. Goodwin 

REBUTTAL BRIEF 

In DMS No. FAA-2011-0481, Respondent seeks to have zero sanction imposed on the basis the 

violations did not occur. Reply Brief at 1-2. Respon.denfs .argument is counter-factual; this. 

Court,s Order of December 8, 2011 ruled that the violations did occur. 

In DMS No. FAA-20 i 1-0484, Respondent seeks to have zero sanction imposed on the basis the 

3a responsible instructor was "ie.n:ninated.'' Reply Brief at 2. Respondent fai.ls to acknowledge its 

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In DMS.No. FAA-2011'-0489, Respondent seeks to have zero sanction imposed on the basis of 

subsequent corrective action. Reply Brief at 2. As noted in Complainant's Brief at 7, 

Respondent.has presented no evidence to this court of how the software proSt:am would have 

prevented the violations or will prevent these types of violations in the futUre .. 

In argUing the application ofthesanction guidance to these cases, Respondent addresses the 

sanction factors of: 

• Certificate holder's level .of experience 

• Ability to absorb sanction 

Complainant's Rcbutta.J Brief 

Cornerstone Aviation, Ine.- FAA-2011-048.1, FAA-20.1.1.-0484, 

FAA.-2011"0489 

Pagel ofS 

.TEFF.rtEY M. T-IAR.PeR., FAA A rro:RmY 

TEL: (425) 227-2161; FAX: (425) 227·1007 
07/12/2012 07:53 4252271007 ANM7 PAGE 08/11 

1 • Voluntary reporting 

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Respondent's has sufficient experience to comply with the Federal Aviation 

Regulations. 

Respondent notes it had been in business, at the tl.me qf violatio~s, for less ~~an eight years. 

Contrary to Respondent's argumer1t however, this fact is n.ot mitigating, it is aggravating. 

Certificate holders with greater levels of experience m.ay be held to a higher standard. FAA 

Order 2150.3B, Page 7-5, ~ 4.c.l. Compliauce with the Federal Aviation Regulations is 

mandatory; even a brand new certificate holder is required to conduct its operations in 

confonnity with them. Respondent is not a brand new certificate holder-at the time of the 

violations, it had at least seven years of experience as a Part 14l school. Tile regulations at issue 

in these cases are straightforward; they merely require a Part 141 sc~ool maintain some basic 

records and comply with its curricula .. It strains credulity to suggest that a certificated pllot 

22 . school in business for seven years somehow docs not have sufficient experience to ensure it only 23 

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trains students m.eetin.g course pterequisites, graduates only students who have completer;!. the 

approved training course the stude.t:'lt en.rolled in, keeps accurate records of completed. training, or 

to write a student's name on a graduation. certificate. 

Respondent has presented no evidence relevant to its ability to absorb a 

sanction. 

In its brief •. Respondent asserts a num.ber of "facts'·' to demonstrate an in.abiiity to absorb the 

proposed sanction-none·ofwhich were made part of the record prior to the filing of 

Resp<;mdent's Brief, and arc therefore not evidence. In the Matter of Northwest Airlines, Inc., 

FAA Order No. 199~-22 at 5, (December 7, 1998) ("Unsubstantiated .and unsupported factual. 

allegations ... in briefs do not constitute evidence.)'). Respondent has not presented any evidence 

of its present, past, or future financial condition to support its contention that it cannot pay the 

proposed sanctions. 

Even if the court were to accept those assertions as evidence; Respondent's argument is not 

mitigating. Respondent's brief frames the issue as a choice between. :future compliance with the 

Federal Aviation Regulations·or paying a sanction fo:r. past violations. 1 Respondent neglects to 

consider other options-such as complyin.g with the Federal Aviation Regulations, or clo.sing its 

doors if it cannot comply. TI1is impl.ies a cavalier attitude toward aviation safety which would 

warrant an aggravation of the sanction, particularly since aviati.ou: is, a.s Respondent puts it "a 

l "Would the FAA prefer that CSA put off the recommended safety iss.uc of maintaining high qu.ality planes in order 

to !lecure CSA's funds to pay san.cti.ons?" Respondent's Brief at 3. 

Complainant's Rebuttal Brief 

Cornerstone Avia.tion, lnc.- PAA~201 t-0481, FAA-201 1~0484, 

FAA·20 11-0489 . . . 

Pa.gc 2 of5 

.TEFFRn M. HARPER, FAA AITORNEY 

TEL: (42.S) 227-21~1; FAX: (425) 227-1007 
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high risk ... business."2 Under Respondent's theory, it is urumme from enforcement, as 

Complaint cannot impose a sanction without causing further violations. This theory is 

incompatible with Respondent's status as a holder of a Part 141 air agency certificate; it is 

Respondent's responsi.bility and obligation to comply with the FARs. 

The voluntary reporting of one of the violations was a/ready considered by 

Complainant in setting a proposed sanction; further reduction is unwarranted. 

At best, Respondent's argument that the sao.ction. should be miti.gated applies only to the 

violations in FAA-20 11-0481; the FAA cOllCedes that the violations in those cases were brought 

· to light as a result of a. ~etter written by one of ~espoudeq.t's instructors. The :record does 110t 

contain any evidence that the violations in the other two cases were voluntarily disclosed-in 

fact, the violations were discovered during the course of an FAA inspection of Respondent. 

Transc~ipt, Pages 21~22. 

The mitigating nature of the voluntary reporting was already considered by Complainant when 

setting the proposed sanction. Transcript, 18: 18-19:5. A further reduction is not warranted. 

The alleged corrective action is not mitigating. 

Respondent argues its implementatio~ of a software program to '~take care of all issues" is 

.QJi.tigatin.g. Respondent's Brief ~t 2-3. Respondent;s allege<;\ corrective action. is no~ mitigating. 

The extent of mitigation for corrective action depends in part on how quickly the corrective 

action was takeri. FAA Order 2l50.3B, Page 7~~., 4.m. Corrective action· taken after a violator 

becomes aware of an enforcement action. warrants less'mitigation. !d. To be mitigating, . 

corrective action must do more than bring a violator i11to compliance. !d. 

Here, the corrective action wasn't started until June 2011, well after the violations occu.:rred-in 

one case o\1er a year after. Transcript 49:2.3 The Complaints in FAA-2011-0481 and -0484 were 

filed May 18, .2011 and May 26, 2011, before the corrective action began. Resp~n.den.t has fai.Ied 

to show how the software program would prevent the viol~t1ons in the. future-in other words, 

bring Respondent into compliance--much Jess do more than that. Simply put; Respondent's 

alleged corrective action amounts to too little, too late. 

2 Rcsp~ndc~t's Brief at 3. . · 3 ''We have been developing this for the past n.ine m.onths ... " A~ the hearing was held March 12, 2012, the corrective 

action was started. m June 2011 a.t the earliest. The Amen dod Complaint in FAA-20 ll. ~0489 alleged a violation 

which occurred July 1, 2009. · · · 

Cor.nplaina;ot's Rebuttal Brief 

Cornerstone Aviation, Inc.- FAA-2011-0481, FAA-2011-0484, 

F Al\·20 11·0489 . . 

Page 3 of5 

. Jer.~trutV M. H.ARPBR., FAA AITORNEY 

TEL: (425} 227·2161; FAX; (425) 227-1.007 
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Conclusion 

The Court should defer to the Administra.tor•s selection. of sanction. und~r NL Industries, Inc. v. 

Dept. a/Transportation. 901 F.2d 141. 144 (D.C. Cir. 1990). Complainant respectfi.llly reqi..tests 

tha~ this Court entering an Order imposing the full sanction.sought in the Complaints. 

Respondent has presented no evidence or argum.ent which would \V31r.ant a reduction of the 

proposed sanction.. 

Complainant's Rebuttal Brlcf 

Cornerstone Aviation, Inc.- FAA-201 .1-0481, FAA-201. 1·0484, 

F AA-20 ll-0489 

Page 4. of5 

JEFFREY M. HAAPER., F M AITORNEY 

TE.T .. ; ( 4.25) 227-2161; FAX:. ( 425) 227·1 007 
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CERTIFICATE OF SERVICE 

I hereby 'certify that the foregoing Complainant's Rebuttal Brief has been served via facsimile 

and Certified Mail - Return Receipt Requested this date, to the following: 

Honorable Richard C. Goodwin 

Office of Hearings, M.:2Q 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm E12-320 

Washington, D.C. 20590 

FAX: 202.366.7536 

Attn: Hearing Docket Clerk, AGC-430 

Wi~bur Wright Building- Suite 2Wl 000 

Federal Aviation Administration 

·soo Independence Avenue sw 

Washington, D.C. 20591 

FAX: 202.493.5020 

I hereby cer:tify that the foregoing Complainant's Rebuttal Brief has been served via·certifiedReturn Receipt Requested Mail this date, to the following: 

Susan Horstman 

Chief Executive Officer 

Cornerstone Aviation, Inc. 

337 North 2370 West #130 

Salt Lake City, UT 84116 

Dated·this lt\ day of July, 2012; 

Complainant's R~;:buttal Brief 

DANA STEPHEN ON 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lin.dAve. SW 

Renton. WA 98057 

(425) 227~2164 

Cornerstone Aviation, Inc.- F..o\A-2011-0481., FAA-201 I ·0484. 

FAA-2011·0489 

.T~!tFR,EY M •. HARPER. FAA ATTO!tNSY 

TEL: (425) 227·2161; FAX; (425) 227·1007 

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