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JEFFREY M. HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND AVENUE SOUTHWEST 

RENTON, WASHINGTON 98057 

TELEPHONE: (425) 227-2161 

FACSIMILE: (425) 227-1007 IZ •.. ?: I 0 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

Comerston~ Aviation, Inc. 

To: Honorable Richard 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 on the basis the 

violations did not occur. Reply Brief at 1-2. Respondent's ,argument is counter-factual; this. 

Court's Order of December 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 Brief at 2. Respondent fails to acknowledge its 

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In DMS.No. FAA-2011-0489, Respondentseeks 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 program would have 

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

In arguing the application ofthe_sanction guidance to these cases, Respondent addresses the 

sanction factors of: 

• Certificate holder's level of experience 

• Ability to absorb sanction 

Complainant's Rebuttal Brief 

Cornerstone Aviation, Inc. - F AA-20 11-0481, F AA-20 11-0484, 

FAA-2011-0489 

Page 1 of5 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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• Voluntary reporting 

• Corrective action. 

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

Regulations. 

Respondent notes it had been in business, at the time of violations, for less Hlan eight years. 

Contrary to Respondent's argument however, this fact is not mitigating, it is aggravating. 

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

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

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

conformity. 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 141 school. The regulations at issue 

in these 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 not have sufficient experience to ensure it only 

trains students meeting course prerequisites, graduates only students who have completed the 

approved training course the student enrolled 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 number of "facts" to demonstrate an inability to absorb the 

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

Respondent's Brief, and are therefore not evidence .. In the Matter of Northwest Airlines, Inc., 

FAA Order No. 1998-22 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 for past violations. 1 Respondent neglects to 

consider other options-such as complying with the Federal Aviation Regulations, or closing its 

4 9 . doors if it cannot comply. This. implies a cavalier attitude toward aviation safety which would 

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warrant an aggravation of the sanction, particularly since aviation is, as Respondent puts it "a 

1 "Would the FAA prefer that CSA put off the recommended safety issue of maintaining high quality planes in order 

to secure CSA's funds to pay sanctions?" Respondent's Brief at 3. 

Complainant's Rebuttal Brief 

Cornerstone Aviation, Inc.- FAA-2011-0481, FAA-201 i-0484, 

FAA-2011-0489 

Page 2 of5 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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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 of a Part 141 air agency certificate; it is 

Respondent's responsipility and obligation to comply with the FARs. 

The voluntary reporting of one of the violations was already considered by 

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

At best, Respondent's argument that the sanction should be mitigated applies only to the 

violations in FAA-2011-0481; the FAA concedes that the violations in those cases were brought 

to light as a result of a ~etter written by one of Respondent'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 of an FAA inspection of Respondent. 

Transcript, 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. 

Responden~ argues. its implementatio~ of a software program to "take care of all issues" is 

.lllitigating. Respondent's Brief at 2-3. Respondent's alleged 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 2i50.3B, Page 7-8, ~ 4.m. Corrective action·taken after a violator 

becomes aware of an 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 the violations 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 how the software program would prevent the violations in the future-in other words, 

bring Respondent into compliance-much less do more than that. Simply put, Respondent's 

alleged corrective action amounts to too little, too late. 

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53 3 "We have been developing this for the past nine monthS..." As the hearing was held March 12, 2012, the corrective 

action was started ill June 2011 at the earliest. The Amended 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 

. JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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Conclusion 

The Court should defer to the Administrator's selection of sanction 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. 

Respondent has presented no evidence or argument which would warrant a reduction of the. · 

proposed sanction. 

Complainant's Rebuttal Brief 

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

FAA-2011-0489 

Page 4 of5 

JEFFREYM. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FA.X:.(425) 227-1007 
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CERTIFICATE OF SERVICE 

I hereby.certi:ty 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 ~20 

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 

Wilbur Wright Building- Suite 2Wl 000 . 

Federal Aviation Administration 

800 IndependenceAvenue.SW 

Washington, D.C. 20591 

FAX: 202.493.5020 

25 I hereby certifY that the foregoing Complainant's Rebuttal Brief has been served via.Certified26 · Return Receipt Requested Mail this date, to the following: 

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Susan Horstman 

Chief Executive Officer 

Cornerstone Aviation, Inc. 

337 North 2370 West #130 

Salt Lake City, UT 84116 

Dated this 12t\ day of July, 2012. 

Office ofRegional Counsel (ANM-7) 

Federal Aviation Administration 

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, FAA ATTORNEY 

TE~: (425) 227-2161; FAX: (425) 227-1007 
1 JEFFREY M. HARPER. 

2 FAA OFFICE OF REGIONAL COUNSEL 

3 1601 LIND A VENUE SOUTHWEST 

4 RENTON, WASHINGTON 98057 

5 TELEPHONE: (425) .227-2161 

6 FACSIMILE: (425) 227-1007 

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UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF llEARINGS 

WASHINGTON, D.C. 

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In the Matter of: 

Cornerstone Aviation, Inc. 

DMS No. PAA-·2011-0481 

DMS No. P AA-20 11-0484 

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 

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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 Brief to the extent it argues facts not in evidence or.irrelevant 

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Procedural History 

The Complaint in case DMS No. PAA-2011-0481 was filed on May 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, on the 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 of the date Mr. Stann was enrolled in that course, a violation of 

14 C.P.R. § 141.101(a){1). 

On December 8, 2011, the Department of Transportation, Office ofHearing (Court) entered an 

Order granting Complainant's Motion for Limited Summary Judgment in case PAA-2011-0481, 

52 · fmding that the violations charged had been established, and limiting the hearing to the question 

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of sanction. 

Complainant's Motion to Strike 

Cornerstone Aviation, Inc. - F AA-20 11-0481, F AA-20 11-0484, 

FAA-2011-0489 . 

Page 1 of5 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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The Complaint in case DMS No. FAA-2011-0484 was filed on May 26,2011. It alleged 

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

accurate records of the participation of an 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 of sanction. 

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

was amended 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 . . 

accurate record of a student's participation in training, 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). 

On December 8, 2011, the Court entered 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 of sanction .. 

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 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 do not constitute evidence." In 

the Matter ofNorthwest Airlines, Inc., FAA Order No. 1998-22 at 5, (December 7, 1998). A 

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

a number of facts that are riot in 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, Inc.- F AA-20 11-0481, F AA-2011-0484, 

FAA-2011-0489 

Page 2 of5 

JEFFREY M.:fiARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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As an example, Respondent asserts that Cornerstone needs to put funds aside to purchase 

engines; that one engine costs approximately $30,000, that one was replaced this year, and that 

4 · two will need to be replaced next year. Respondent's Brief at 3. None of these facts are found in 5 the record.· 6 

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Likewise, Respondent assets it has an SBA loan of $170,000 and a line ofcredit. 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 has been ·established in each of these 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 second paragraph of numbered 

section 1 discusses Respondent's enrollment records, concluding "There is no violation here." 

As the Court determined the violations occurred, this section of the brief is irrelevant. 

In case DMS No. FAA-2011-0481, Respondent argues SLCC maintained the 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 of the certificate holder 

might also maintain enrollment records for its own purposes is irrelevant to the question of what 

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

As another example, Respondent states that its former instructor has gone on to become a pilot 

for a cargo carrier. The current job of the former 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 to Strike 

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

FAA-2011-0489 

Page 3 of5 

JEFFREY M. HARPER, F AAATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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3 Conclusion 

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

6 THEREFORE, Complainant requests that the Court issue an Order striking the Reply Brief. 

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8 DATED this 12th day of July, 2012. 

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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 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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CERTIFICATE OF SERVICE 

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

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

Honorable Richard C. Goodwin 

Office ofHearings, M-20 

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 

Wilbur Wright Bujlding.-Suite 2W1000 

Federal Aviation Administration 

800 Independence A venue SW 

Washington,D.C. 20591 

FAX: 202.493.5020 

I hereby certify that the foregoing Complainant's Brief has been served via Overnight Courier, 

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

Susan Horstman 

ChiefExecutive Officer 

Cornerstone Aviation, Inc. 

337'North 2370 West #130 

Salt Lake City, UT 84116 

38 Dated this 1ih, day of July, 2012. 

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Complainant's Motion to Strike 

JvuV~l:i;;__~ Dana 

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Stephenson 0~ Office of Regional Counsel (ANM-7) 

Federal A:viation Administration 

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. 

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