08/05/2013 07:00 4252271007 ANM7 

FACSIMILE MESSAGE 

Kyle E. Lomazow 

FEDERAL A VJATION ADMINISTRATION 

OFFICE OF REGIONAL COUNSEL 

ANM-7 . 

1601 LIND AVENUE S.W. 

RENTON, WAS:HINGTON 98057 

PAGE 01/05 

The information contained in this facsimile message is legally privileged and confidential 

information and is intended only for the use of the individual named on this cover sheet. 

If the reader of this message is not the imended recipient, you are hereby notifi.ed that any 

use, dissemination, distribution, or copy of this facsimile is strictly prohibited. If you 

have received this facsimile in error, please immediately notify us by telephone at 

425-227-2007. 

DATE: 

TO: 

FAX NO.: 

PHONE NO.: 

RE: 

August 6, 2013 

Hearing Docket Clerk 

202-493-5020 

NO. 

PAGES: 

FROM: 

FAX 

NO.: 

PHONE 

NO.: 

Cornerstone Aviation, Inc. Email: 

DMS No •. FAA-2011-1293 

COMPLAINANT'S HEARING BRIEF 

6 including cover 

Mary Ann Smith 

425-227-1007 

425-227-2925 
08/05/2013 07:00 4252271007 ANM7 PAGE 02/05 

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KYLE E. LOMAZOW 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND AVENUE SOUTHWEST 

RENTON, WASHINGTON 98057 

TELEPHONE: (425) 227·1847 

FACSIMILE: (425) 227-!007 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

OMS No. FAA-2011-1293 

In the Matter of: 

COMPLAINANT'S HEARING BRIEF 

Cornerstone A viaticn, Inc. 

Judge Richard C. Goodwin 

26 To; Honomble Richard C. Goodwin: 

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PROCEDURAL IDSTORY 

The Complaint in this case was filed on December 15, 2011, The Complaint alleged Respondent :· ~ '. 

failed to comply with its approved tmining·course, a violation of 14 Code ofFederal Regulations 

(C.P.R.) Section (§)141.95(b)(7) by issuing a graduation certificate to a student that did not 

contain a statement of the cross"country training the student had received. It also alleged 

Respondent failed to certify a student's record upon termination of that student's training. 

On January 9, 2013, the Court entered an Order granting Complainant's Motion for Decision and 

Renewed Motion for Decision, limiting the Hearing to Sanction only. 

On December 8, 2011, the Court entered an Order granting Complainant's Motion for Limited 

Summary Judgment in case FAA-2011-0489, finding that the violations charged had been 

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

On July 11,2013, the Court granted Complainant's Motion to cancel the scheduled hearing and 

allow Complainant and Respondent to file hearing briefs in lieu of a hearing 

Complainant's Hea.ring Brief 

Cornerstone Avla.tion, Jnc.- F AA·20I 1·1293 

Page I ofS 

., .. , ,' 

K YL.B E. LOMAZOW, FAA A TiOR'N'SY 

TEL: (425) 227-1847; FAX: (425) 227-1007 
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FACTS 

In determining an appropriate sanction, the Federal Aviation Administration (FAA) follows the 

sanction guidance found in FAA Order2150.3B. In these cases, the FAA followed that 

guidance. Respondent is a small business, and has been in business for nine years. 

In determining an appropriate sanction, the FAA considered the violations committed by 

Respondent in these cases as non-operational and inadvertent. Respondent has a history of being 

cooperative with the FAA as it investigates violations, to the extent of disclosing Federal Aviation 

Regulation violations to the FAA. This fact was taken into account in determining an appropriate 

H sanction. 

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These were purely recordkeeping violations, where there was no concern that the pilots whose 

training records were incorrect were competent and qualified to exercise the privileges of their 

newly-earned certificates. 

ARGUMENT 

Standard 

Under 49 United States Code (U.S.C:) § 46J'O~(a)(S)(A), a "small business concern is Hable to 

the Government for a civil penalty of not more than $10,000 ... " The maximum penalty was 

adjusted to $11,000 on June 15,2006. 14 C.F.R. § 13.305 (Table)/ 

In determining an appropriate civil penalty, the Agency considers seven factors: In the Matter of 

Warbelow'sAir Ventures, Inc., FAA Order :No. 2000-3 at 16-17 n. 22 and 21 (February 3, 2000). 

The Agency has the burden of justifying the amount of civil penalty sought. 14 C.F,R. 

§ l3.224(a); In I he Matter of Lu:xembr.i.rg, FAA Order 1994-18 (June 22, 1994) at 4: To guide the 

:FAA's prosecutorial discretion, the Agency has promulgated penalty guidelines, which are found 

in FAA Order 2150.3B Chapter 7 and Appehdix B dated October J, 2007 (Sanction Guidance). 

The Sanction Guidance contains tables that establish specific penalty ranges for different types of 

vio1ations.2 The startil'lg point for a sanction determination is the middle of the sanction range .. 

Sanction Guidance, Appendix B, Pa.ragraph 3,c. The FAA's sanction determination does not, 

however, reflect a fixed mathematical computation; in addition to the published penalty ranges, it 

takes into accou11t thirteen factors set forth in Chapter 7, Paragraph 4 of the sanction guidance, 

which address the issues set forth in Warbelpw,' These factors are used to adjust the sanction ,' ,. '• '' 

upward or downward from the middle of the recommended range. 

1 28 U.S.C. § 2461 (Note). 

2 S~mction Guidance~ Appendix B. 

J Those factors are: 

Complainnnt's Hearing Brief 

Cornerstone Aviation, Inc.- PAA-2011·1293 

Page 2 or S 

KY1.S: ri. L.OMAZOW, FAA ATTORNEY 

TEL: (425) 227"1 847: FAX: (425) 227-1007 
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The FAA Order reflects the Administrator's general views about appropriate civil penalties;.civil 

penalties must reflect the totality ofthe circumstances surrounding the violations. Folsom's Air 

Service, Inc., FAA Order No. 2008-11 (November 6, 2008). The weight to be given to each·of 

these factors is within the discretion of the Complainant; "the Complainant maintains relative 

prosecutorial discretion in detennining the case's final aggregate weight in proposing the level of 

civil penalty." In I he Matter of William A: Luker, Jr., FAA Docket No. CP09SW0008, 2010 WL 

1989430 (May 13, 201 0) (Order of Chief J~dge Yoder Granting Complainant's Motion for 

Summary Judgment). Although a Departme~t dfTransportation Administrative Law Judge is not 

statutorily bound to follow the Administrator's guidance, "[a]n administrative agency is entitled 

to substantial deference in assessing the civil penalty appropriate for a violation of its regulations. 

The agency's choice of a sanction is not to be overturned unless it is unwarranted in law or 

without justification in fact." NL Industries. Inc, v. Dept. ofTransportati011, 901 F.2d 14), 144 

(D.C. Cir. 1990). 

Further, the Administrator has the ability to Impose the Agency's sanction policy on appeal if the 

assessed civil penalty is not consistent with the policy, In the matter ojWarbelow 's Air 

Ventures, Inc., FAA Order No. 2000·3 (February 3, 2000) at 20; In the matler a/Northwest 

Airlines, FAA Order No. 1990-37 (November 7, 1990) at 8-9. 

Sanctiun Guidance 

As discussed, the Sanction Guidance establishes sanction ranges for different types of violations. 

For violations committed by Part 141 pilot schools, the ranges are found in Figure B-3-d. The 

Sanction Guidance for the violations .under iliis .docket are: 

Violation Sanction Range 

4 3 a. Nature of the violation; . 4 4 b. Whether the violation was inadvertent and rtpt deliberate: 

4 5 c. The certificate holder's level of experience; 

.4 6 d, The attitude of the violator: 

47 e. The degree of hazard: 

48 f. Whether there was action taken by the employer or otherauthoril)' against the employee that committed the 

4 9 violation(s); 

so g, Usc of the certificate; 

51 h. Violation history; 

52 i. Deeisionallaw; 

53 j. Ability to absorb the sanction; 

k. Consistency of Sanction; 

]. Whctber the violation WaS reported V<liuntJ!irr,ly; and. 

m. Corrective Action, ' : · 

·complainant's Hearing Brief 

Cornerstone Aviation, In~.- FAAM2011~ 1293 

P!ll\o 3 ofS 

KY1.2 P., l .. OMAZOW, FAA AtrORNEY 

TEL: (~25) 227·18~7: FAX: (425) 227-1007 
08/05/2013 07:00 4252271007 ANM7 PAGE 05/05 

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B-3-d(5) Improper Crediting to, or graduation 

of student 

(14 C.F.R. §§ 141.95(b)(7)) 

B-3-d(8) Fatlure to rnaintain training record 

(14 C.F.R. § 141.10l(c)) 

Moderate to Maximum 

Moderate to Maximum 

The Administrator seeks a total sanction of$5,000 in this .case. 

The sanction sought by Complainant in this case is near or below the bottom ofthe range given 

in the sanction guidance, considering there ~e two violations here and the maximum sanction 

under 2150.38 would be $?2,000. The moderate range for each violation is $7,700 and therefore, 

the proposed sanction of $5,000 sought by Complainant is less than the moderate range for a 

single violation, let alone two. 

Furthermore, these violations were not reported voluntarily, but rather discovered upon 

inspection by an FAA Aviation Safety Inspector. Respondent did send notices to all CFI's and 

assistant chief instructors that no graduation certificates are to be signed by anyone other than the 

chiefinstructors, but that is the type of action that should be expected of a flight school and 

therefore not a reason for a significant mitigation of the sanction. Respondent has not addressed 

at all the fact that the graduation certificates at issue here did not comply with 14 C.F.R. § 

141.95(b)(7). 

The Administrative Law .Judge should defer to the Administrator's selection of sanction under 

NL Industries, Inc., 90 I F .2d at 144, and enter an Order assessing the full $15,500 penalty sought 

in the three (3) Complaints. 

CONCLUSION 

The Court should defer to the Administrator's selection of sanction under NL Industries, Inc., 

901 F.2d at 144. Complainant respectfully requests that this Court entering an Order imposing 

the full sanction sought in the Complaints. Any deviation from the Sanction Guidelines has been 

to Respondent's benefit. Respondent has presented no evidence warranting a further reduction of 

sanction. 

Cornplainant 1s Hearing Brl~f 

Cornerstont:: Aviation, Inc,·- F AA~:ZO I 1-1293 

Pnge4of5 

KYl.~ E. UJMA.ZOW, FAA ATfORNf::Y 

TEL: (42>) 227"1847: FAX: (425) ;127"1007 
08/05/2013 07:00 4252271007 ANM7 

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CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Complainant's Brief has been served via facsimile and FirstClass mai 1 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 E11-3l 0 

Washington, D.C. 20590 

FAX: (202) 366-7S36 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

FAX: (202) 493"5020 

Susan Horstman · 

Chief Executive Officer 

Cornerstone Aviation, Inc. 

337North 2370 Wcst#130 

Salt Lake City, UT 84116 

FAX: (801) 355-2754 

3< Dated this 6111, day of Augus~ 2013. 

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Compla.ino.nt's Hearing Brief 

Comerston~ Aviation, Inc.- FAA .. :zOl I-1293 

PageS of 5 

4~zz ~ ~/'c!)_-~/ MARY ANN MITH 

Office of Regional Counsel (ANM-7) 

F~deral Aviation Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

(425) 227-2925 

KYLE E. LOMAl.OW, FAA AlTORNEY 

TEL: (42lj 227·1847: f'AX: (425) 227·1007 

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