1 2 3. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 JEFFREYM. HARPER FAAOFFICE OF REGIONAL COUNSEL 1601 LIND AVENUE SOUTHWEST RENTON, WASHINGTON 98057 TELEPHONE: (425) 227-2161 FACSIMILE: (425) 227-1007 IZ ?: 

### I0 

## •.. UNITED STATES OFAMERICA DEPARTMENT OFTRANSPORTATION OFFICE OF HEARINGS WASHINGTON, D.C.

Inthe Matter of:**Comerston~** Aviation, Inc.

To: HonorableRichard C. Goodwin: DMS No. FAA-2011-0481 DMS No. FAA-2011-0484 DMS No. FAA-2011-0489

REBUTTAL BRIEF

.Judge Richard C. Goodwin

REBUTTAL BRIEF 

## DOCKET

In DMS No. FAA-2011-0481, Respondent seeks to have zero sanction imposyd onthe basis the violations did not occur. Reply Briefat 1-2. Respondent's,argument is counter-factual; this. Court's Order ofDecember 8, 2011 rUled thatthe violations did occur.
In DMS No. FAA-2011-0484, Respondent seeks to have zero sanction imposed on the basis the responsible instructor was "terminated." Reply Briefat 2. Respondent fails to acknowledge its 39 40 . own obligation, as the holder ofa pilot school certificate, to comply with 14·C.F.R. Part 141. 3.8

. 41

42 43 44 45 46 47 48 49 50 51 52 53 In DMS.No. FAA-2011-0489, Respondentseeks to have zero sanction imposed onthe basis of subsequent corrective action. Reply Briefat 2. As noted in Complainant's Briefat 7, Respondent has presented no evidence to this court ofhowthe software program would have prevented the violations or 

### will prevent these types ofviolations inthe futUre

..
In arguing the application ofthe_sanction guidance to these cases, Respondent addresses the sanction factors of:

• Certificate holder's level ofexperience

• Ability to absorb sanction
Complainant's Rebuttal Brief Cornerstone Aviation, Inc. - FAA-20 11-0481, FAA-2011-0484, FAA-2011-0489 Page 1 of5 JEFFREYM. HARPER, FAAATTORNEY TEL: (425) 227-2161; FAX: (425) 227-10071 2 .3 4 5 6 7 8 9 10 11 12 13 14. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

. 34

35 .,36 37 38 39

. 40

41 42 43 44 45 46 47 48 

### • Voluntary reporting

• Corrective action.
Respondent's has sufficient experience to comply with the FederalAviation Regulations. 

### Respondent notes it had been in business, at the time ofviolations, for less Hlan eight years. Contrary to Respondent's argument however, this fact is not mitigating, it is aggravating.
Certificate holders with greater levels ofexperience may be held to a higher standard. FAA Order 2150.3B,.Page 7-5,

### ~ 4.c.l. Compliance with the FederalAviation Regulations is mandatory; even a brand new certificate holder is required to conduct its operations in conformity. withthem. Respondent is not a brand new certificate holder-atthe time ofthe violations, it had at least seven years ofexperience as a Part 141 school. The regulations at issue inthese cases are straightforward; they merely require a Part 141 school maintain some basic records and comply with its curricula. It strains credulity to suggest that a certificated pilot school in business for seven years somehow does nothave sufficient experience to ensure it only trains students meeting course prerequisites, graduates only students who have completedthe approved training course the student enrolled in, keeps accurate records ofcompleted 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 number of"facts" to demonstrate an inability to absorb the proposed sanction-none ofwhich were made part ofthe record priorto the filing of Respondent's Brief, and are therefore not evidence

.. In the Matter of NorthwestAirlines, Inc., 

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

... in briefsdo not constitute evidence."). :Respondent has not presented any evidence ofits present, past, or future .financial condition to support its contention that it cannot pay the proposed sanctions.

Evenifthe courtwere to accept those assertions as**evidence~** 

### Respondent's argument is not mitigating. Respondent's briefframes the issue as a choice between future compliance with the Federal Aviation Regulations orpaying a sanction for past violations. 1 

### Respondent neglects to consider other options-such as complying with the FederalAviation Regulations, or closing its 4 9

. 

### doors ifit cannot comply. This. implies 

## acavalier attitude toward aviation safety which would 50 51 52 53 

### warrant an aggravation ofthe sanction, particularly since aviation is, as Respondent puts it "a

1 "Would the FAApreferthat CSA put offthe recommended safety issue ofmaintaining high quality planes in order to secure CSA's funds to pay sanctions?" Respondent's Briefat 3. Complainant's Rebuttal Brief CornerstoneAviation, Inc.- FAA-2011-0481, FAA-201 i-0484, FAA-2011-0489 Page 2 of5 JEFFREY M. HARPER, FAAATTORNEY TEL: (425) 227-2161; FAX: (425) 227-10071 4 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39

. 40

41 42 43 44 45 46 47 48 49 50 51 

### high risk

... business."2 

### Under Respondent's theory, it is immune from enforcement, as. Complaint cannot impose a sanction without causing further violations. This theory is incompatible with Respondent's status as a holder ofa Part 141 air agency certificate; it is Respondent's responsipility and obligation to comply with the FARs.

The voluntary reporting ofone ofthe violations was alreadyconsideredby Complainantin setting a proposedsanction; furtherreduction is unwarranted. 

### Atbest, Respondent's argument that the sanction should be mitigated applies only to the violations inFAA-2011-0481; the FAA concedes that the violations inthose cases were brought to light as a result ofa**~etter** 

### written by one ofRespondent's instructors. The record does not contain any evidence that the violations in the other two cases were voluntarily disclosed-in fact, the viol<:i.tions were' discovered during the course ofan FAA inspection ofRespondent. Transcript, Pages 21-22.

The mitigating nature ofthe voluntary reporting was already considered by Complainant when setting the proposed sanction. Transcript, 18:18-19:5. Afurther reduction is not warranted.

The alleged corrective action is notmitigating.**Responden~** 

### argues. its**implementatio~** 

### ofa software program to "take care ofall issues" is .lllitigating. Respondent's Briefat 2-3. Respondent's alleged corrective action is**no~** 

### mitigating.

The extent ofmitigation for corrective action depends inpart on how quickly the corrective action was takeri. FAA Order 2i50.3B, Page 7-8,**~** 

### 4.m. Corrective action·taken after a violator becomes aware ofan enforcement action warrants less'mitigation. 

### !d. To he mitigating,. corrective action must do more than bring a violator into compliance. !d. · · 

### Here, the corrective action wasn't started until June 2011, well after theviolations occurred-in

one case over a year after. Transcript 49:2.3 

### The Complaints in FAA:..2o 11-0481 and -0484 were filed May 18,2011 and May 26, 2011, 

### before the corrective·action began. Respondent has failed to show howthe software program would prevent the violations in the future-in other words, bring Respondent into compliance-muchless do more thanthat. Simply put, Respondent's alleged corrective action amounts to too little, too late.

52 2**Responde~t's** Briefat 3. 53 3 "Wehave been developing this for the past nine monthS..." As the hearing washeldMarch 12, 2012, the corrective action was started 

### ill June 2011 at the earliest. TheAmended Complaint in FAA-20 11-0489 alleged a violation which occurred July 1, 2009. Complainant's Rebuttal Brief Cornerstone Aviation, Inc.

- FAA-20 11-0481, FAA-2011-0484, FAA-2011-0489 Page 3 of5 . JEFFREYM. HARPER, FAA ATTORNEY TEL: (425) 227-2161; FAX: (425) 227-10071 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2i 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 

### Conclusion
The Court should defer to the Administrator's selection ofsanction under

### NL Industries, Inc. 

### v. Dept. a/Transportation. 901 F.2d 141, 144 (D.C. Cir. 1990). Complainant respectfully requests that this Court entering an Order imposing the full sanction.sought in the Complaints. Respondenthas presented no evidence or argument which would warrant a reduction ofthe. · proposed sanction.

Complainant's Rebuttal Brief Cornerstone Aviation, Inc.- FAA-2011-0481, FAA-2011-0484, FAA-2011-0489 Page 4of5 JEFFREYM. HARPER, FAAATTORNEY TEL: (425) 227-2161; FA.X:.(425) 227-10071 2 3 4 5 b 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 

## CERTIFICATE OF SERVICE

I hereby.certi:ty that the foregoing Complainant's Rebuttal Briefhas been served via facsimile· and Certified Mail

- Return Receipt Requested this date, to the following:
Honorable Richard C. Goodwin Office ofHearings, M**~20** 1200 NewJerseyAvenue, S.E. EastBuilding Ground Floor, 

### Rm E12-320 Washington, D.C. 20590 FAX: 202.366.7536

Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000

. FederalAviationAdministration 800 IndependenceAvenue.SW Washington, D.C. 20591 FAX: 202.493.5020

25 I hereby certifY that the foregoing Complainant's Rebuttal Briefhas been served via.Certified26 · Return Receipt Requested Mail this date, to the following: 27 28 29 30 31· 32**~3** 34 35 36 37 38 39 40 41 42 43 44 45

. 46 47 48 49 50 51 52 53 Susan Horstman ChiefExecutive Officer CornerstoneAviation, Inc. 337North 2370 West #130 Salt Lake City, UT 84116

Datedthis 12t\ day ofJuly, 2012.

Office ofRegional Counsel (ANM-7) FederalAviationAdministration 1601 LindAve. SW Renton, WA 98057 (425) 227-2164

Complainant's Rebuttal Brief · Cornerstone Aviation, Inc.-**FAA-2011~0481,** FAA-2011-0484, FAA-2011-0489 Page 5 of5 JEFFREY M. HARPER, FAAATTORNEY**TE~:** (425) 227-2161; FAX: (425) 227-10071 JEFFREYM. HARPER. 2 FAA OFFICE OF REGIONAL COUNSEL 3 1601 LIND AVENUE SOUTHWEST 4 RENTON, WASHINGTON 98057 5 TELEPHONE: (425) .227-2161 6 FACSIMILE: (425) 227-1007 7 8 9 10 11 12 13 14 

### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF llEARINGS

WASHINGTON, D.C.

15 16 17 18 19 20 21 22 23 24 25 26 Inthe Matter of:

Cornerstone Aviation, Inc. DMS No. PAA-·2011-0481 DMS No. PAA-2011-0484 DMS No. PAA-2011-0489

MOTION TO STRIKE Judge Richard C. Goodwin

· 21 

### To: Honorable Richard C. Goodwin:

. 28

29 

### COMPLAINANT'S MOTION TO STRIKE 30 31 In accordance with 14 C.P.R.§ 13.220(±)(4) (Rule 13.220(±)(4)) Complainant moves that the 32 33 ALJ strike Respondent's Reply Briefto the extent it argues facts not in evidence or.irrelevant 34

. facts. 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 

### Procedural History
The Complaint in case DMS No. PAA-2011-0481 was filed onMay 18, 2011. The Complaint alleged Respondent failed to comply with its approved training course, a violation of 14 C.P.R. §141.83(a)(1) by starting a student, Mr. Stann, onthe instrument 

### I commercial training course when he did**~ot** meet the prerequisites for that colirse. 

### It also alleged Respondent failed to maintain an accurate record ofthe date Mr. Stann was enrolled inthat course, a violation of 14 C.P.R. § 141.101(a){1).

On December 8, 2011, the Department ofTransportation, Office ofHearing (Court) entered an Order granting Complainant's Motion for Limited Summary Judgmentin case PAA-2011-0481,
52 · fmding thatthe violations chargedhad been established, and limiting the hearing to the question 53 ofsanction.

Complainant's Motion to Strike Cornerstone Aviation, Inc. - FAA-20 11-0481, FAA-20 11-0484, FAA-2011-0489

. Page 1 of5 JEFFREYM. HARPER, FAAATTORNEY TEL: (425) 227-2161; FAX: (425) 227-10071 2 ·3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 3.9 40 41 42 43 44 45 46 47 48 49 50 51 52 53 

### The Complaint in case DMS No. FAA-2011-0484 was filed on May 26,2011. It 

### alleged Respondentdid not comply with its approved training course, did not maintain current and accurate records ofthe participation ofan enrolled student, graduated a student who had not completed the curriculum, and issued a graduation certificate to that student, violations of 14 C.F.R. 

### §§ 141.77(a)(l), 141.77(b), 141.83(a)(1), and 141.101(a). The violations steinmed from a student who had·had not completed ground school under Part 141.

On October 28, 2011, the Court entered an Order granting Complainant's Alternative Motion for Summary Judgment Hereafter Limiting Hearing to Sanction 

### in case FAA-2011-0484, finding that the violations charged had been established, and limiting the hearing to the question ofsanction.

The Complaint in case DMS No. FAA-2011-0489was filed onJune 16,2011. The Complaint
was amended onJuly 13, 2011. As amended, the Complaint alleged Respondent issued a
. graduating certificate that did not containthe graduate's name, failed to maintain a current and

. . 

### accurate record ofa student's participation intraining, arid failed to certify 

### a student's.record at the end oftraining, violations of14 C.F.R. 

### § 141.95(b)(2), 141.101(a), and 141.101(c).
OnDecember

### 8, 2011, the Courtentered an Order granting Complainant's Motion for Limited Summary Jqdgment in case FAA-2011-0489, finding that the violations charged had been .established, and limiting the hearing to the question ofsanction

.. On October 6, 2011, the Court entered an Order consolidating these three matters for hearing. The hearing on sanction only was held March 12, 2012 in Salt Lake City, Utah. ·
The transcript from the hearing became available to undersigned counsel on April3, 2012. Complainant's post-trial briefwas served April20, 2012. Respondent's Reply was served July 3, 2012.


### Argument Respondent's reply briefcontains facts not 

### in evidence as well as irrelevant facts. To the extent the briefcontains such material, it should be stricken.

Facts not in Evidence 

### "Unsubstantiated and unsupported factual allegations

.... 

### in briefs do not constitute evidence." 

### In the Matter ofNorthwestAirlines, Inc., FAA Order No. 1998-22 at 5, (December 7, 1998). A comparison ofRespondent's Briefwith the record in the case shows that Respondent has asserted
a number offacts that are riot in the record. This examination is complicated by the complete failure ofRespondent to cite to therecord when asserting facts.

Complainant's Motion to Strike CornerstoneAviation, Inc.- F AA-20 11-0481, F AA-2011-0484, FAA-2011-0489 Page 2 of5 JEFFREY M.:fiARPER, FAAATTORNEY TEL: (425) 227-2161; FAX: (425) 227-10071 2 3 As an example, Respondent asserts that Cornerstone needs to putfunds aside to purchase engines; that oneengine costs approximately $30,000, that one was replaced this year, and that
4 · two will need to be replaced next year. Respondent's Briefat 3. None ofthese facts are found in 5 the record.· 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32· 33 34 35 36 37 38 39 40. 41 42 43 44 45" 46 47 48 49 50 51 52. 53 Likewise, Respondent assets it has an SBA loan of$170,000 and a line ofcredit. Respondent's Briefat 3.

While these things may be true, Respondent failed to present this information at hearing. To· present it now deprives Complainant ofits rightto call witnesses andpresent evidence to rebut those facts and the implication Respondent is unable to pay the proposed sanctions.



### Irrelevance
The question ofliability has 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, the secondparagraph ofnumbered section 1 discusses Respondent's enrollment records, concluding "There is no violationhere." As the Court determined the violations occurred, this section ofthe briefis irrelevant.

In case DMS No. FAA-2011-0481, Respondent argues SLCC maintainedthe enrollment records. This may be true, but 14 C.P.R. § 141.101(a) requires the 

### certificate holder to maintain the enrollment record, not the affiliate. The fact that a business partner ofthe certificate holder might also maintain enrollment records for its ownpurposes is irrelevant to the question ofwhat sanction is appropriate when the certificate holder fails to maintain therequired record.

As another example, Respondentstates that its former instructor has gone onto become a pilot for a cargo carrier. The currentjob ofthe former employee ofa flight school has zero bearing on what an appropriate sanction would be for a FAR violation committed by the flight school.

Complainant's Motion to Strike Cornerstone Aviation, Inc.- FAA-2011-0481, FAA-2011-0484, FAA-2011-0489 Page 3 of5 JEFFREYM. HARPER, FAAATTORNEY TEL: (425) 227-2161; FAX: (425) 227-10071 2 3 

### Conclusion

: · Respondent's Reply Briefasserts facts not in evidence and argues irrelevant material.
6 THEREFORE, Complainant requests that the Court issue an Order striking the Reply Brief. 7
8 DATED this 12th day ofJuly, 2012. 9 10 11 12 13 14 15 16 17 18 19

. 20

21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

. 49 50 51 52 53

# --~-~ Jef 

### y M. Harper FAA Attorney

Complainant's Motion to Strike Cornerstone Aviation, Inc.- FAA-2011-0481, FAA-2011-0484, FAA-2011-0489 Page 4 of5 JEFFREYM. HARPER, FAA ATTORNEY TEL: (425) 227-2161; FAX: (425) 227-10071 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

. 37 

### CERTIFICATE OF SERVICE

I hereby certify that the foregoing Complainant's Briefhas been served viafacsimile and Certified Mail

- Return Receipt Requested this date, to the following:
Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewJersey Avenue, S.E. East Building Ground Floor, 

### ·Rm E12-320 Washington, D.C. 20590 FAX: 202.366.7536

Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Bujlding.-Suite 2W1000 Federal Aviation Administration 800 Independence Avenue SW Washington,D.C. 20591 FAX: 202.493.5020


### I hereby certify that the foregoing Complainant's Briefhas been served via Overnight Courier, First Class, and Certified- Return Receipt Requested Mail this date, to the following:
Susan Horstman ChiefExecutive Officer CornerstoneAviation, Inc. 337'North 2370 West #130 Salt Lake City, UT 84116

38 

### Dated this 1ih, day ofJuly, 2012. 39 40 41 42 43 44 45 46. 47 48 49 50 51 52

. 53

Complainant's Motion to Strike

# r~

# JvuV~l:i;;__~**0~** Dana Stephenson Office ofRegional Counsel (ANM-7) FederalA:viationAdministration 1601 LindAve. SW Renton, WA 98057 (425)227-2164

Cornerstone Aviation, Inc.

- FAA-20 11-0481, FAA-20 11-0484, FAA-2011-0489 JEFFREY M. HARPER, FAA ATTORNEY TEL: (425) 227-2161; FAX: (425) 227-1007. Page 5 of5