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Sa S 

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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

PRE-HEARING CONFERENCE 

IN THE MATTER OF: 

FEDERAL AVIATION 

ADMINISTRATION 

RECEIVED 

APR - 8 2011 

HEARING DOCKBT 

COMPLAINANT, 

V. 

M & R HELICOPTER 

RESPONDENT. 

FAA DOCKET NO, 

CPlOSOOOll 

FDMS NO. 

FAA-2010-1211 

-cr 

."• r ' - • ' - '- ' 

'O 

Friday, 

March 25, 2011 

Via Teleconference 

The above-entitled matter came on 

for hearing, pursuant to notice, at 3:00 p.m. 

BEFORE: THE HONORABLE RONNIE A. YODER, 

CHIEF ADMINISTRATIVE LAW JUDGE 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
APPEARANCES: 

On Behalf of the Complainant: 

LAURA PONTO, ESQ. 

CYNTHIA DOMINIK, ESQ. 

of: Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

(202) 267-9863 

On Behalf of the Respondent: 

MICHAEL SELIG, MD, FACC, CFI-H 

of: 2816 Orefield Road 

Allentown, Pennsylvania 18014 

(610) 360-3953 

(202) 234-4433 

NEAL R. GROSS 

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1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgros3.com 
1 P-R-0-C-E-E-D-I-N-G-S 

2 3:07 p.m. 

3 JUDGE YODER: On the record. This 

4 is a pre-hearing telephone conference in M & 

5 R Helicopter FAA Docket CPlOSOOOll. That's 

6 FDMS No. FAA-2010-211. 

7 And in the telephone we have Laura 

8 Ponto who is Complainant's counsel. And we 

9 have a court reporter who will transcribe the 

10 proceeding. We have attempted three times to 

11 connect with Dr. Selig, the Respondent in this 

12 case. And in each case we have reached only 

13 his answering machine. 

14 This pre-hearing conference was 

15 coordinated with both parties so that both 

16 would be available for the conference. And 

17 Dr. Selig agreed to this time. And the pre18 hearing conference was then confirmed by a 

19 notice served on March 8, 2011 and served on 

20 both parties. The conference was again 

21 confirmed by our office telephonically 

22 yesterday. And both parties indicated they 

NEAL R. GROSS 

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1323 RHODE ISLAND AVE., N.W. 

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1 would be available. 

2 Dr, Selig has not indicated any 

3 reason for his not being available for this 

4 conference. And consequently I intend to 

5 issue an order to show cause why a default 

6 should not be entered in this proceeding for 

7 his failure to comply with the pre-hearing 

8 conference order. 

9 In connection with that, Ms. 

10 Ponto, I think there are a number of matters 

11 however that we should place on the record so 

12 that you can address them in connection with 

13 any show cause filings. Firstly, with respect 

14 to the violations in this proceeding, I gather 

15 there are two violations alleged or one. 

16 MS. PONTO: Well, there' s one 

17 factual scenario with the violations that 

18 involve the use of the mechanic who performed 

19 safety-sensitive functions for M & R 

20 Helicopters without being included in random 

21 drug and alcohol pools which are required 

22 under the regulations. There are multiple 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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1 regulations which are implicated. So in that 

2 sense there are multiple violations but only 

3 one individual. 

4 We allege that he violated two 

5 regulatory provisions, 14 CFR 135.251(a) and 

6 14 CFR 135.255(b). And those are the 

7 provisions that govern --

8 JUDGE YODER: Sorry. You 

9 misspoke. You mention 251(b)? 

10 MS. PONTO: Yes, I'm sorry. 

11 251(a) and 255(b). 

12 JUDGE YODER: 251(b) or 255(b)? 

13 MS. PONTO: 135.251(a) and 

14 135.255(b). 

15 JUDGE YODER: 255(b). Okay. 

16 MS. PONTO: And those correspond 

17 to the regulatory requirements that are set 

18 forth in 14 CFR Part 121 Appendix I and 14 CFR 

19 Part 121 Appendix J. And those appendices are 

20 the requirements that set forth the parameters 

21 and the regulatory requirements for any 

22 operator to subject safety sensitive employees 

NEAL R. GROSS 

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to drug and alcohol testing. And those are 

the regulatory requirements which were 

essentially violated in this case. 

JUDGE YODER: My understanding of 

the answer you just gave me is two. My 

question was how many violations are you 

alleging. 

MS. PONTO: Yes, two. 

JUDGE YODER: Two. Okay. Now 

with respect to 251(a), that's Appendix I. 

And I gather that one of the issues involved 

in this proceeding if it goes to hearing would 

be moonlighting. Is that correct? 

MS. PONTO: That's an issue that 

Dr. Selig has raised. He contends that this 

particular employee was covered by another 

company's random drug and alcohol testing 

program 

But we have evidence and would 

produced this evidence at hearing that this 

individual did not perform the work that he 

performed for M & R Helicopters within the 

(202) 234-4433 

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1 scope of his employment with this other 

2 company. So unless his performance for M & R 

3 Helicopters fell within the scope of 

4 performance under this other company, it's 

5 irrelevant whether he was covered with that 

6 other company because the regulations don't 

7 allow for coverage by another company to be 

8 satisfactory. 

9 JUDGE YODER: Well, let me see if 

10 I understand what you're saying. What you're 

11 saying is that even if there were no objection 

12 to moonlighting as a general proposition --

13 that is using someone else's drug and alcohol 

14 testing program to satisfy the requirements 

15 for the Respondent -- in this case the 

16 employee involved was not doing the same kind 

17 of work for the Respondent that he was doing 

18 for the third party. 

19 MS. PONTO: Well, the term 

20 "moonlighting" and even the allowance of 

21 moonlighting is something that was not allowed 

22 for under the regulations at the time that 

NEAL R. GROSS 

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1 this violation occurred. So that's something 

2 that would not prove to be a defense in this 

3 case regardless. 

4 JUDGE YODER: Did you hear my 

5 question? 

6 MS. PONTO: Yes, I did. Your 

7 Honor. 

8 JUDGE YODER: My question was are 

9 you taking the position that even if 

10 moonlighting were not a problem that this 

11 activity would not be covered in this case 

12 because he was doing a different kind of work 

13 for the third party than he was doing for the 

14 Respondent. 

15 MS. PONTO: Well, I'm not sure if 

16 it was a different kind of work or not. He 

17 might have been doing repair work in general 

18 for both companies. But he wasn't doing it 

19 for M & R Helicopters within the scope of his 

2 0 employment for the first company. Dr. Selig 

21 had referred to this company as Air Methods 

22 and Flight Methods. He's used both company 

NEAL R. GROSS 

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1323 RHODE ISLAND AVE., N.W. 

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1 names. So I'm not sure which company it is. 

2 Our inspectors looked into both 

3 and found that this inspector was actually 

4 Employed by a company by that name . The other 

5 company had no such program. One of the 

6 companies did have a program. But this 

7 individual was not performing the work for M 

8 S: R Helicopters under this company anyway. So 

9 it was immaterial to the case . 

10 JUDGE YODER: You're saying that 

11 in order for him to use a third party program 

12 that the work done by the mechanic would have 

13 to be within the scope of the employment of 

14 the third party. 

15 MS. PONTO: Exactly. Yes. So M & 

16 li Helicopters could, for example, contract 

17 with Flight Methods for repair work and Mr. 

18 Saker could have performed the repair work 

19 within the scope of his performance of safety20 sensitive function s fo r Air Methods, 

21 JUDGE YODER: Yes. 

22 MS. PONTO: And as long as he was 

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1 on Air Methods' random drug testing program, 

2 it wouldn't pose a problem. 

3 But in this case M & R Helicopters 

4 had no relationship with Air Methods. He 

5 hired Mr. Baker directly. He performed the 

6 work for M & R Helicopters directly. And 

7 therefore he was required to be in a drug 

8 testing program for M & R Helicopters and he 

9 was not. 

10 JUDGE YODER: Where does that 

11 requirement show up that it has to be done 

12 within the scope of the employment of the 

13 third party? 

14 MS. PONTO: Well, that would 

15 involve -- This goes back to your question of 

16 even if moonlighting would have been allowed 

17 and, if in the sense he were working for this 

18 other company, we would not have found that 

19 there was a violation if he had performed the 

20 work for the other company. So the violation 

21 here and the fact that he was not included in 

22 M fit R Helicopters' program; that violation is 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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1 found in the language that was cited in the 

2 regulations that are set forth in the 

3 complaint which is that M & R Helicopters is 

4 required to test each employee. And by virtue 

5 of Mr. Baker working directly for M & R 

6 Helicopters, he was an employee of M & R 

7 Helicopters, M & R Helicopters was required 

8 to test Mr. Baker. 

9 And under Part 121, Appendix I, 

10 Section BB, M & R Helicopters -- and I'm just 

11 reading from paragraph six of the complaint --

12 was "required to test each safety-sensitive 

13 employee for random drug testing." In the 

14 next paragraph we allege that under Appendix 

15 J, Section 3(c), they were "required to test 

16 safety-sensitive employees for random alcohol 

17 misuse." And Mr. Baker fell within these 

18 requirements. 

19 Mr. Baker could have also had his 

2 0 own program if he were an independent 

21 contractor. But he did not. 

22 JUDGE YODER: Let me see if I 

(202) 234-4433 

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COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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1 understand what you're saying. Is your 

2 assertion that he violated Appendix I in any 

3 way related to the fact that Appendix I was 

4 amended to prohibit moonlighting? 

5 MS. PONTO: Well, if this scenario 

6 had happened prior to 2004 and if Mr. Baker 

7 had in fact performed this safety-sensitive 

8 function through his employment with another 

9 company and M & R Helicopters had a 

10 contractual relationship with that company, 

11 then there would not be a violation here. Of 

12 course, that's a lot of factual variations 

13 that are not here. And, yes, if all of those 

14 factual variations were the case and we had a 

15 different fact pattern under pre-2004 

16 regulations, we would not have taken this 

17 action. 

18 So it's both by virtue of the fact 

19 that this is not a moonlighting situation. 

20 That even if it happened under the regulations 

21 that allowed moonlighting this wouldn't have 

22 been permissible. But also the regulations 

(202) 234-4433 

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1 since 2004 haven't allowed moonlighting 

2 because we discovered that even moonlighting 

3 posed a safety risk. When there was not a 

4 direct contractual relationship between the 

5 companies there was no assurance that an 

6 employee who even if they were working for 

7 Company A if they were out there doing work 

8 for Company B and Company A and Company B had 

9 no relationship between one another, if 

10 Company B was just relying on the statement 

11 that this employee was on Company A' s program 

12 but they didn' t actually have any direct 

13 relationship or any verification that this 

14 employee was actually be subject to random 

15 drug testing, there could be a drug user or 

16 someone abusing alcohol performing safety17 sensitive work. And Company B might not know 

18 about it and wouldn't be testing this 

19 individual. 

2 0 And that's why the regulations 

21 were rewritten to close this potential safety 

22 hazard in 2004. 

NEAL R. GROSS 

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1 JUDGE YODER: That relates to the 

2 question of moonlighting. But where in the 

3 regulation is the requirement that there needs 

4 to be a contract between the company and the 

5 third party that is doing the drug testing? 

6 MS. PONTO: Well, there isn't 

7 anything necessarily in the regulation that 

8 sets that out. If anything the pre-2004 

9 moonlighting exception was a loophole that 

10 allowed that when there was a contract between 

11 the two. And the amendments in 2 0 04 closed 

12 that loophole and the regulatory language that 

13 you see now says that the company, in this 

14 case M & R, has to test each employee 

15 directly. And so there's no provision for 

16 relying on any other company whether there's 

17 a contract or not. 

18 JUDGE YODER: I haven't heard you 

19 tell me where the requirement is that I've 

2 0 asked you about and indeed I think you said 

21 that there was no such requirement. But 

22 that's the way you would apply it if you were 

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1 applying it pre-amendment to Appendix I. 

2 MS, PONTO: Well, because I think, 

3 Your Honor, it's not so much that there is a 

4 requirement. The requirement is that the 

5 company tests the employees. If you were 

6 asserting, for example, an affirmative dissent 

7 that this individual was on another program or 

8 if you were saying that the company did not 

9 need to test this individual because they had 

10 -- that there was an exemption and there was 

11 something in the regulations which there is 

12 not. I can't point to anything because there 

13 simply isn't anything that allows that. 

14 JUDGE YODER: Okay. Was there a 

15 corresponding change made in Appendix J? 

16 MS. PONTO: In 2004? 

17 JUDGE YODER: At any time to bar 

18 moonlighting. 

19 MS. PONTO: I'm not sure. Your 

2 0 Honor. 

21 JUDGE YODER: I'm not aware of 

22 any. In any event, you might need to address 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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those questions. 

Secondly, are you alleging in this 

complaint that there were Part 135 violations 

- - operations? 

MS. PONTO: No, there were not 

operations. The Part 135 violations, those 

are just the requirements that a Part 13 5 

certificate holder conduct drug and alcohol 

testing under Part 121. 

JUDGE YODER: Okay. So your 

position is that the requirements are based 

upon the possession of operating specs and a 

certificate, not on the basis of operations. 

MS. PONTO: Exactly, Your Honor. 

JUDGE YODER: Okay. Well, in that 

connection, you may need to look at the 

Everson case? Are you familiar with the 

Everson case? 

MS. PONTO: I'm familiar with it, 

Your Honor. I'll look at it again. 

JUDGE YODER: It is FAA Docket 

CP99WA0002 and it's a decision by Judge Kolko 

(202) 234-4433 

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on June 16, 2 000. 

(Discussion off the record.) 

JUDGE YODER: All right. So you 

can look at that, Ms, Ponto. It's my 

understanding that in the case Judge Kolko 

concludes that the intent of the regulations 

is to apply this requirement only to companies 

which are engaged in operations. 

MS. PONTO: But M & R Helicopters 

was engaged in operations. 

JUDGE YODER: Okay. Was he 

engaged in Part 135 operations? 

MS. PONTO: Yes, Your Honor. 

JUDGE YODER: And he's denied 

that, has he not? 

MS. PONTO: I'm sorry. 

JUDGE YODER: Has he not denied 

that he was engaged in 135 operations? 

MS. PONTO: He has since the 

inception of this civil penalty case. Then 

he's taken certain actions. I've been 

notified that he has changed the company name. 

(202) 234-4433 

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COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE.. N.W. 

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1 He certainly claimed in pleadings that he's 

2 filed that he has closed bank accounts, that 

3 he is no longer operational. But he continues 

4 to hold the certificate. He's also claimed in 

5 other documents that he's filed in this case 

6 that he plans to go back into this business 

7 full-time and that he plans to migrate into 

8 this business with the term that he had used 

9 full-time when he wraps up his cardiology 

10 business. 

11 He still holds an active 135 

12 certificate and from the Agency's perspective 

13 it's very much operational. He has changed 

14 the name recently of the company, but has not 

15 surrendered his certificate and does still 

16 hold a valid Part 135 certificate to operate. 

17 JUDGE YODER: Well, let me retrace 

18 my steps here. I started out by asking you if 

19 you alleged that he was engaged in operations 

2 0 at the time covered by the complaint and my 

21 recollection is that you said no, 

22 MS. PONTO: Oh, I'm sorry. Your 

NEAL R. GROSS 

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1 Honor. I misunderstood. No, we do allege and 

2 the complainant alleges that he was and at all 

3 set forth in the complaint was the holder of 

4 a Part 135 certificate and operational. And 

5 to the best of your knowledge he continues to 

6 be. 

7 I thought you were asking me 

8 whether we were alleging any operational 

9 violations and I was -- So I was simply 

10 affirming that we were alleging violations 

11 just at the drug testing regulations. But we 

12 do certainly unequivocally argue that he is an 

13 operator under Part 13 5 and that these 

14 regulations apply to him. 

15 JUDGE YODER: Would you show me in 

16 your complaint where you allege that he was 

17 conducting operations? 

18 MS. PONTO: Under paragraph 1. 

19 JUDGE YODER: That says he was 

20 authorized to conduct operations. 

21 MS. PONTO: Yes. And by virtue of 

22 holding the operations specifications as is 

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1 pled in paragraph 2, he is required to comply 

2 with Part 121 Appendices I and J. 

3 JUDGE YODER: Ms. Ponto, I want to 

4 make sure we speak the same language. What I 

5 asked you was whether you alleged that he was 

6 engaged in operations. Do you know the 

7 difference between engaging in operations and 

8 being authorized to engage in operations? 

9 MS. PONTO: From a regulatory 

10 perspective under FAA regulations --

11 JUDGE YODER: Don't argue the law 

12 with me, Ms. Ponto. What I asked you was do 

13 you know the difference between engaging in 

14 operations and being authorized to engage in 

15 operations. 

16 MS. PONTO: Yes. 

17 JUDGE YODER: If you don't, say 

18 so. 

19 MS. PONTO: Well, yes, But are 

20 you asking me in a nonlegal sense? 

21 JUDGE YODER: I'm asking you what 

22 I asked you before. Do you know whether he 

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was in fact engaged in operations? That's a 

fact question. Do you know the answer to 

that? 

MS. PONTO: Not without knowing 

what you mean by "engaged in operations." 

JUDGE YODER: I mean actually 

operating. 

sense? 

MS. PONTO: Operating in what 

JUDGE YODER: Conducting 135 

operations. 

MS. PONTO: I don't know what -- I 

don't sitting here right now know what 

operations M & R Helicopters was doing during 

this period. I do know that they were --

JUDGE YODER: That's an answer. 

Secondly, then there's nothing in 

the complaint that he alleges that he was 

engaged in operations. Is that correct? 

MS. PONTO: What we've alleged in 

the complaint is that he held a certificate 

which requires --

(202) 234-4433 

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1 JUDGE YODER: Ms. PontO, I know 

2 What you alleged in the complaint. If you'll 

3 answer my questions, we'll get through this a 

4 lot faster. There's nothing in this complaint 

5 that alleges that he was actually engaged in 

6 operations, is there? 

7 MS. DOMINIK: Your Honor, my name 

8 is Cynthia Dominik. As Ms. Ponto mentioned 

9 earlier, I'm working with her on this case as 

10 her managing attorney. And you're correct. 

11 That exact allegation is not in the complaint. 

12 But M & R Helicopters was capable 

13 of operating and because it was capable of 

14 operating --

15 JUDGE YODER: Ms. Dominik, I'm 

16 happy to have you appear in this proceeding. 

17 I'm happy to have you answer questions in a 

18 direct fashion because frankly I haven't been 

19 getting answers in a direct fashion. 

20 And what I need is answers to my 

21 questions and you just provided one. The 

22 answer is there's no allegation in the 

^202) 234-4433 

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1 complaint that he's actually engaged in 

2 operations. 

3 Now what I need you folks to do is 

4 reflect on the Everson case with that in mind 

5 in connection with any show cause order that 

6 I issue. Do you understand what I'm saying? 

7 MS. DOMINIK: Yes, sir. 

8 JUDGE YODER: Because if Everson 

9 requires that there be operations in order to 

10 have a violation, you don't even have one 

11 alleged. Do you understand what I'm saying? 

12 MS. DOMINIK: Yes, sir. 

13 JUDGE YODER: Good. 

14 MS. DOMINIK: I understand your 

15 argument. We'll take a look at Everson. 

16 JUDGE YODER: I'm not making an 

17 argument, madam. I don't make arguments. I 

18 am pointing out a previous decision with 

19 respect to the meaning of these requirements 

20 under Part 135 and I'm asking that you folks 

21 address that in connection with any show cause 

22 order. Okay? 

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1 MS. DOMINIK: Yes, sir. 

2 JUDGE YODER: Thank you very much. 

3 All right. Let's just --

4 Now I know there are a bunch of 

5 things in the filings about whether this 

6 company is or is not in existence. You have 

7 financial records that were provided. Is that 

8 correct? 

9 MS. PONTO: I don't believe that 

10 Dr, Selig ever provided any financial records 

11 to the Agency. No. I bel ieve he just 

12 represented that in his pleading. 

13 JUDGE YODER: I have a call coming 

14 in. Just a moment. Off the record. 

15 (Whereupon, a short recess was 

16 taken while Judge takes call.) 

17 JUDGE YODER: Hello? Hello? 

18 MS. PONTO: Yes, Your Honor. 

19 JUDGE YODER: Okay. Just a 

20 minute. Off the record. 

21 (Whereupon a short recess was 

22 taken while Judge continues call.) 

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1 JUDGE YODER: Okay. Now do I have 

2 everybody here? Hello? 

3 MS. PONTO: We are here, Your 

4 Honor. 

5 JUDGE YODER: Now we have Dr. 

6 Selig and we're going to try to add him. Off 

7 the record. 

8 (Whereupon, a short recess was 

9 taken to add Dr. Selig to conference call.) 

10 JUDGE YODER: Let's go back on the 

11 record. During the time we were off the 

12 record we were able to reach Dr. Selig and 

13 there was some confusion about the connection 

14 of him to the telephone conference. While we 

15 were trying to get through to him, he was 

16 apparently holding the line thinking that 

17 someone from here had called him and he was 

18 holding for the pre-hearing conference. 

19 In any event, he is now with us. 

2 0 So we have on the line Ms. Ponto for the 

21 Complainant and we also have Ms. Ponto's --

22 Did you say supervising attorney, Ms. Ponto? 

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1 ts that what you called her? 

2 MS. PONTO: Ms. Dominik is one of 

3 the managers here in our division. She's my 

4 manager. Yes. 

5 JUDGE YODER: Ms. Dominik is also 

6 on the line. And we have now Dr. Selig and we 

7 have a court reporter who is transcribing the 

8 proceeding, 

9 Dr. Se l i g, a copy of the 

10 transcript of this proceeding --

11 DR. SELIG: Hello? 

12 JUDGE YODER: Hello? Who is this? 

13 DR. SELIG: Yes. I'm still here. 

14 You're just cutting out. 

15 JUDGE YODER: Are you on a speaker 

16 phone? 

17 DR. SELIG: I am. 

18 JUDGE YODER: Would you get off of 

19 it? Okay. Now is that a -- I just want to 

20 Tnake sure you don't get lost in the --

21 {Background noise.) 

22 I'm getting feedback from your 

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1 phone. What sort of phone are you using? 

2 DR. SELIG: I have a Droid. 

3 JUDGE YODER: Is that a mobile 

4 phone? 

5 DR. SELIG: Yes. 

6 JUDGE YODER: Well, we'll see what 

7 we can do. 

8 DR. SELIG: I wanted to record the 

9 conversation as well. So --

10 JUDGE YODER: You are not 

11 permitted to record the conversation. 

12 DR. SELIG: Okay. 

13 JUDGE YODER: The transcript is 

14 being made of the proceeding and that 

15 transcript will be the official record of the 

16 proceeding. And other transcriptions of the 

17 proceeding are prohibited. 

18 DR. SELIG: Okay. Very good. As 

19 long as I -- I'd like to just put my request 

20 in depending on how this conference goes. I'd 

21 like to put my request in up front for a copy 

22 of the transcript. 

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1 JUDGE YODER: Certainly. And I 

2 was about to say that a copy automatically 

3 goes to the FAA and to the Judge, The FAA 

4 pays for the transcript. And if you need a 

5 copy of the transcript you'll have to arrange 

6 that with the court reporter. 

7 DR. SELIG: Court reporter. Is 

8 that --

9 JUDGE YODER: A copy of the 

10 transcript automatically goes into the docket 

11 at some --

12 DR. SELIG: How? 

13 JUDGE YODER: But I don't know how 

14 long it will be before it gets there. 

15 DR. SELIG: Oh, who -- I'm sorry. 

16 Is there a telephone number for the court 

17 reporter I can have? 

18 JUDGE YODER: Yes. Would you give 

19 that to him please? 

20 Off the record. 

21 (Whereupon, a short recess was 

22 taken.) 

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1 JUDGE YODER: Now, Dr. Selig, I am 

2 including from the documents that you've filed 

3 that you are not an attorney. 

4 DR. SELIG: That's correct. 

5 JUDGE YODER: Okay. I try not to 

6 practice medicine because I think it's not in 

7 my best interest. But in any event I wanted 

8 to alert you to the fact that as the 

9 Respondent in this case although you aren't 

10 under oath statements that you make in the 

11 course of this proceeding are transcribed and 

12 can be used in a subsequent proceeding if this 

13 goes to hearing. Do you understand that? 

14 DR. SELIG: I understand. 

15 JUDGE YODER: And you understand 

16 that --

17 DR. SELIG: I understand, Your 

18 Honor. 

19 JUDGE YODER: -- willful false 

20 statements can be the subject of further 

21 criminal penalties. Do you understand that? 

22 DR. SELIG: Yes, I understand, 

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1 Your Honor. 

2 JUDGE YODER: I always alert 

3 people who appear pro se to that fact because 

4 it's important that you understand. Okay. 

5 DR. SELIG: Yes. 

6 JUDGE YODER: Now we had started 

7 to look at the complaint and the violations in 

8 this case and we had gleaned from Ms. Ponto 

9 that there are two violations alleged, one of 

10 135.251(a) and one of 135.255 (b) . And we were 

11 talking about the basis for those alleged 

12 violations and the extent to which 

13 moonlighting was a factor in the violations 

14 and --

15 DR. SELIG: I think. Judge -- I 

16 don't mean to interrupt you, Your Honor, but 

17 there's a lot of issues even before that. 

18 JUDGE YODER: Yes. Well, deal 

19 with my issues and then we'll deal with other 

20 issues that you might want to deal with. 

21 Okay? 

22 DR. SELIG: Yes, Your Honor. 

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1 JUDGE YODER: And so as 

2 understand what you said, Ms. Ponto, you think 

3 the regulations prohibit the use of someone as 

4 an employee who is tested by a third party 

5 unless there is a contract between the 

6 respondent and the third party for the use of 

7 that employee. Is that what I understand you 

8 to say? 

9 MS. PONTO: Yes. 

10 DR. SELIG: Now that's the --

11 JUDGE YODER: Wait, Doctor. You're 

12 going to have to wait. When I get through 

13 here, we'll get to you. Okay? 

14 DR. SELIG: Your Honor --

15 JUDGE YODER: No. You can't keep 

16 interrupting me. Okay? 

17 DR. SELIG: Okay. 

18 JUDGE YODER: You will have your 

19 chance. I'm trying to clarify what Ms. 

20 Ponto's position is. All right. 

21 And your position, Ms. Ponto, is 

22 that there has to be a contractual 

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1 II relationship between the respondent and the 

2 (I person who does that drug testing. Is that 

3 your position? 

4 MS. PONTO: Yes, Your Honor. 

5 II JUDGE YODER: Okay. And --

6 DR. SELIG: But -- I'm sorry. I 

7 have to let you know. I have some learning 

8 disabilities and I have some processing 

9 disorders that are documented. I have a 

10 little difficulty in this format. So please 

11 bear with me. I mean --

12 JUDGE YODER: I'll bear with you. 

13 But don't interrupt me. Wait until we get 

14 through. We'll get to you. All right? 

15 DR. SELIG: Yes. 

16 JUDGE YODER: All right. So, Mr. 

17 Ponto, as I understand it, you say that's a 

18 requirement. But there's nothing in the 

19 regulations that says it's a requirement. 

2 0 MS. PONTO: Your Honor, I'm going 

21 to read to you a definitional portion. This 

22 is in 14 CFR Part 121, Appendix I. And this 

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1 is in the definitional portion of employer. 

2 It says, "An employer may use a contract 

3 employee who is not included under the 

4 employer's FAA-mandated anti-drug program to 

5 perform a safety-sensitive function only if 

6 that contract employee is included under the 

7 contractor's FAA-mandated anti-drug program 

8 and is performing a safety-sensitive function 

9 on behalf of that contractor, i.e., within the 

10 scope of employment with that contractor." So 

11 we've pulled this as one example where there 

12 is language within the regulation that 

13 addresses these provisions. 

14 In the current regulation which 

15 are governing this proceeding and in this 

16 factual pattern, that's simply not the case. 

17 Those are --

18 JUDGE YODER: I'm sorry. Just 

19 stop right there. 

2 0 MS. PONTO: Okay. 

21 JUDGE YODER: Are you saying the 

22 regulation you just read is not the current 

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1 one? 

2 MS. DOMINIK: Your Honor, the FAA 

3 recodified the Appendices I and J into Part 

4 12 0 about a year ago. 

5 JUDGE YODER: Okay. This is not 

6 Ms. Ponto. This is --

7 MS. DOMINIK: Ms. Dominik. 

8 JUDGE YODER: Ms. Dominik, okay. 

9 MS. DOMINIK: And Ms. Ponto was 

10 reading a definition that is found in 

11 Appendices I and J which were actually the 

12 regulations where the regulations were 

13 codified at the time that these violations 

14 occurred. 

15 JUDGE YODER: Okay. So you're 

16 saying that the inspection by another company 

17 would have to be done within the scope of the 

18 employment of the mechanic. 

19 MS. PONTO: Yes, that the work 

20 would have had to have been done within this 

21 scope of the employment. 

22 JUDGE YODER: Of the mechanic. 

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1 MS. PONTO: Yes. 

2 JUDGE YODER: Okay. And so from 

3 that perspective moonlighting doesn't become 

4 a problem. 

5 MS. PONTO: As long as there is a 

6 contract between the two companies, 

7 moonlighting is not a problem. 

8 JUDGE YODER: Well, what you read 

9 me didn't require any contract between the two 

10 companies. It said it had to be done --

11 MS. PONTO: I'm sorry. Within the 

12 scope of that employment, yes, between the two 

13 companies. 

14 JUDGE YODER: No, you didn't say 

15 anything about a contract between two 

16 companies. You said within the scope of the 

17 employment of the person who employs the 

18 mechanic and does the testing. 

19 MS. PONTO: I'm sorry if I misused 

20 the language, Your Honor. The distinction I 

21 guess is one that we used internally. Because 

22 if somebody is performing that work within the 

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1 scope of their employment of another company 

2 we would treat that person as a contractor or 

3 as a contract mechanic, not as an employee. 

4 If there is no other employer that 

5 they're performing that work within the scope 

6 of they' re treated as an employee of the 

7 company. So in this case the individual at 

8 issue, Mr. Baker, was an employee of M & R 

9 Helicopters. 

10 JUDGE YODER: Okay. Well, you 

11 folks keep all that in mind and that may be 

12 something you'11 need to address to me in a 

13 brief if we don't get this matter otherwise 

14 resolved. Okay? 

15 MS. PONTO: Thank you. Your Honor. 

16 JUDGE YODER: And you'll also need 

17 to address the impact of moonlighting on this 

IB case given the fact that there was an 

19 amendment to Appendix I and no amendment to 

2 0 Appendix J. Do you understand what I'm 

21 saying? Hello? 

22 MS. PONTO: Yes. 

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1 JUDGE YODER: Okay. Thank you. 

2 All right. 

3 The next thing we went to, Dr. 

4 Selig, was the question of whether these 

5 requirements for testing relate to a company 

6 that has an operations certificate or one that 

7 is actually conducting operations. And we 

8 addressed the question of whether the 

9 complaint alleges that there were any 135 

10 operations being conducted. 

11 Now, Dr. Selig, at the time 

12 involved in this complaint you did have 135 

13 specifications. Is that right? 

14 DR. SELIG: I did have 

15 specifications, Your Honor. However because 

16 of pretty severe personal conditions and human 

17 factors there was no pilot available which was 

18 me. And I was unable to carry on my other 

19 functions within the company because of a 

20 severely litigious divorce and custody issues 

21 and a practice whereas I couldn't handle. 

22 JUDGE YODER: Okay. 

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1 DR. SELIG: So I was shut down 

2 basically since before June of 2007. So not 

3 only was there not a risk to the public but 

4 there was also not even the risk that' s a 

5 chance of a risk. 

6 JUDGE YODER: I got that, Dr. 

7 Selig. To the extent that we can just answer 

8 the questions it will move this thing along. 

9 DR. SELIG: Yes, Your Honor. 

10 JUDGE YODER: So I understand from 

11 what you've just said that you were not 

12 conducting Part 135 operations at the time 

13 covered in this complaint. 

14 DR. SELIG: That's right. There's 

15 no pilot, Your Honor. 

16 JUDGE YODER: Were you conducting 

17 any operations? 

18 DR. SELIG: The only thing I did 

19 is basically flying privately. 

2 0 JUDGE YODER: But -- Okay. You 

21 were flying privately, but you were not doing 

22 Part 135 operation. 

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1 DR. SELIG: That's correct, Your 

2 Honor. 

3 JUDGE YODER: Okay. So in the 

4 face of that I have called counsel's attention 

5 to a case of style Everson in 2000 which was 

6 decided by a Judge Kolko here in the 

7 Department who said that the requirements for 

8 testing only apply when there are in fact 

9 actual operations. And in fact if there are 

10 not actual operations then those testing 

11 requirements do not apply. 

12 And that case is David Everson. 

13 And it is an initial decision served June 16, 

14 2000. And so that is something that the 

15 Complainant will have to address if this 

16 proceeding goes forward. Because if Everson 

17 means what it seems to mean, then it would 

18 raise a question as to whether there is any 

19 basis for an alleged violation. 

2 0 MS. PONTO: Your Honor, having 

21 looked at Everson --

22 JUDGE YODER: Yes, madam. 

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1 MS. PONTO: May I address this? 

2 JUDGE YODER: Yes, madam. Please. 

3 MS. PONTO: So I've pulled Everson 

4 now that you've mentioned it and this is a 

5 case which dealt with failing to implement an 

6 anti-drug program. And as is set forth in 

7 Everson at the time the company had a certain 

8 number of days after receiving a Part 135 

9 certificate in order to implement. And in the 

10 factual scenario set forth this company claims 

11 that it has not yet begun operation which is 

12 very distinguishable from a situation such as 

13 this where M & R Helicopters had been 

14 operating and may claim that it had been 

15 dormant because of whatever personal factors 

16 might have led Dr. Selig to not be operating. 

17 But from the FAA's regulatory 

18 perspective, once a company begins operation 

19 and the requirement to implement an anti-drug 

2 0 program comes into play which was done here --

21 M & R Helicopters had implemented a program, 

22 had already been previously inspected, was 

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1 already operational and had this drug and 

2 alcohol testing program in place -- those 

3 requirements were there and in effect. So 

4 it's very different from a situation where 

5 we're dealing with a company that has not yet 

6 implemented and those requirements haven't yet 

7 come into play as was the case in Everson. 

8 DR. SELIG: Your Honor, if I may 

9 comment. 

10 JUDGE YODER: Yes, certainly. 

11 DR. SELIG: Of the issues here --

12 JUDGE YODER: The issue we're 

13 talking about. 

14 DR. SELIG: Well, we'll talk about 

15 basically that these two mechanics at all 

16 times relevant were always on a drug and 

17 alcohol program before and during any 

18 operations. Now, true, they were not on my 

19 specific drug program. I did have my own drug 

2 0 program and I was on that drug program. 

21 But I underwent a drug abatement 

22 inspection in April of 2004. Now the newest 

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• 

1 definition of employer in the Appendices I and 

2 J had changed in February. 

3 The problem is, Judge, just like 

4 the I and J clauses are very unclear, 

5 confusing to you and I and everyone who reads 

6 these. They're also not -- The drug abatement 

7 inspector also was unaware of that. So here 

8 I am getting an inspection by the Drug and 

9 Alcohol Abatement Program and he doesn't even 

10 say anything about a regulation change. 

11 My aircraft, Your Honor, is right 

12 across the street from the Allentown --

13 JUDGE YODER: Dr. Selig, before 

14 you go further, let me make sure you 

15 understand. You are charged with the 

16 knowledge of whatever the regulations are. 

17 Period. End of story. Don't argue about 

18 whether you knew of about the regulations. 

19 It's not going to be --

20 DR. SELIG: I understand. My only 

21 issue is that Ms. Ponto is trying to use a 

52 double standard. They're trying to hold me to 

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1 a different standard, to a higher standard, 

2 than their own FAA officials, first, in their 

3 own drug abatement program and -^ 

4 JUDGE YODER: I'm talking about 

5 the issue we were talking about, Dr. Selig. 

6 So let's get back to what I was talking about. 

7 DR. SELIG: Yes. 

8 JUDGE YODER: Ms. Ponto, I 

9 understand what you've said about your 

10 position with respect to the applicability of 

11 Everson. But I am suggesting that you need to 

12 look at that case and distinguish it in order 

13 to proceed with this case. 

14 MS. PONTO: Yes, Your Honor. 

15 JUDGE YODER: Do you understand 

16 what I' m saying? I' m not saying that I 

17 necessarily have to follow Everson nor am I 

18 limited by what it says. And if the question 

19 is what does the regulation mean and the issue 

20 may be whether operations are required, then 

21 that's something you should look at. 

22 Okay. Now let me just see. So we 

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1 got to the question of whether there were 

2 operations. And, Dr. Selig, in your papers 

3 you state at several places that there have 

4 been no operations since 2007 or 2009. Today 

5 you said 2007. 

6 DR. SELIG: Well, I changed the 

7 name of the company, Your Honor. And we 

8 changed parameters of the company in 2009. 

9 But there has been no pilot since about May of 

10 2007. And therefore I was unable to do any 

11 operations being that there was no pilot. 

12 JUDGE YODER: Okay. Now you also 

13 have stated in some of your filings that the 

14 company is not in existence. 

15 DR. SELIG: That's right. M & R is 

16 not in existence. 

17 JUDGE YODER: Okay. Now I should 

18 alert you to the fact that there apparently is 

19 a website for your company, M & R Helicopters. 

20 Is that correct? 

21 DR. SELIG: Well, it' s a transition 

22 issue because my op specs has been with FAA 

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1 now for almost a year and a half. The company 

2 financially has been discontinued in July --

3 I'm sorry. In that 2009 through the 

4 Department of Corporations in Pennsylvania. 

5 So there was no - - Even before the 

6 violation was cited, this company had changed. 

7 It changed. All the financials were closed. 

B JUDGE YODER: Okay. But does not 

9 the director of - - We also looked at their 

10 website and they list this as an LLC 

11 registered in Pennsylvania. Is that not 

12 correct? 

13 DR. SELIG: That's correct. It's 

14 an LLC and the other partner did just give me 

15 the company. 

16 JUDGE YODER: So it is still a 

17 company. 

18 DR. SELIG: No, it's under a 

19 different company name now. It's a different 

20 company. There's no longer anything under M 

21 & R Helicopters. 

22 JUDGE YODER: A change in the name, 

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1 Dr. Selig, does not change the existence of 

2 the company. The fact that you changed the 

3 name does not mean the company doesn't exist* 

4 It just means it exists with a different name. 

5 DR. SELIG: That's true, Judge. 

6 It's actually the same certificate number. 

7 The FAA even though I made a name change, 

8 right, they wanted to keep my same certificate 

9 number. 

10 JUDGE YODER: So the fact is that 

11 the company does exist* 

12 DR. SELIG: Well, under --

13 JUDGE YODER: So your statements it 

14 doesn't exist were just wrong. 

15 DR. SELIG: Under M & R Helicopters 

15 it doesn't exist. It exists under DR 

17 Helicopters. 

18 JUDGE YODER: I'm talking about the 

19 company, not the name. The company does 

20 exist. Is that correct? 

21 DR. SELIG: Well, I mean a company 

22 exists. 

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1 JUDGE YODER: And you've changed 

2 the name to DR Helicopters. Is that right? 

3 DR. SELIG: Right. Yes. 

4 JUDGE YODER: Okay. And you 

5 provided some tax return information with 

6 respect to M & R Helicopters, did you not? 

7 DR. SELIG: That's correct because 

8 at that time that was the name. 

9 JUDGE YODER: Okay. And --

10 DR, SELIG: It's a -- operation 

11 because I haven't been able to do flights 

12 because there's no pilot. So it's lost money 

13 for the last bunch of years, five years or so. 

14 So it's a -- operation. 

15 JUDGE YODER: So the DR Helicopters 

16 balance sheet would also show a negative net 

17 worth. 

18 DR. SELIG: Absolutely. 

19 JUDGE YODER: Okay. Now does the 

20 company website say that you're available to 

21 do Part 91 operations? 

22 DR. SELIG: Yes, it does. 

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1 JUDGE YODER: But you aren't doing 

2 it. 

3 DR. SELIG: It says no 13 5 

4 operations. 

5 JUDGE YODER: Okay. But you aren't 

6 doing any - - It says that there are no 135 

7 operations. 

8 DR. SELIG: Yes. It does say that. 

9 JUDGE YODER: Okay. So you're only 

10 doing Part 91. 

11 DR. SELIG: That's right. 

12 JUDGE YODER: Okay, 

13 DR. SELIG: And I'm not even doing 

14 that really. 

15 JUDGE YODER: Do you have a name 

16 change pending with the FAA? Is that correct? 

17 DR. SELIG: That's correct. Yeah. 

18 They had me redo all my operational 

19 specifications and compliance statements. 

2 0 JUDGE YODER: Okay. 

21 DR. SELIG: It's taking - - My 

22 inspector retired. So everything got delayed 

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1 a lot. 

2 JUDGE YODER: All right. Well, 

3 let's look at the proposed civil penalty here. 

4 Ms. Ponto, can you tell me how this civil 

5 penalty was computed? 

6 MS. PONTO: Yes, Your Honor. The 

7 civil penalty was proposed consistent with FAA 

8 Order 2153(b) which is the guidance for all 

9 civil penalties of this nature. 

10 JUDGE YODER: You're telling me 

11 things I already know and not that I ask you. 

12 MS. PONTO: Okay. 

13 JUDGE YODER: My question was can 

14 you tell me how the penalty was computed. 

15 MS. PONTO: Well, under the order, 

16 we consider a number of factors. And in this 

17 case we considered all of the available 

18 factors and we proposed --

19 JUDGE YODER: How was the penalty 

2 0 was computed? 

21 MS. PONTO: Well, it was one 

22 employee and it was two violations of the drug 

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1 and alcohol testing regulations. The maximum 

2 civil penalty was $11,000. At this point, we 

3 propose the civil penalty of $4400. 

4 JUDGE YODER: The maximum for one 

5 violation or the maximum for two? 

6 MS. PONTO: The maximum for one 

7 violation is $11,000. 

S JUDGE YODER: Okay. And so the 

9 maximum for two violations would be $22, 000 or 

10 were you figuring it only on the basis of one 

11 violation? 

12 MS. PONTO: We figured it as the 

13 violation involving one employee. So we 

14 treated it as one violation. 

15 JUDGE YODER: Ah. 

16 MS. PONTO: Yes. 

17 JUDGE YODER: Well, previously when 

18 1 asked you how many violations were involved 

19 and you told me two, you misspoke. 

20 MS. PONTO: I had clarified. Your 

21 Honor, that there were two regulatory 

22 violations with one employee. 

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1 JUDGE YODER: Well, that's sort of 

2 a -- clarification which doesn't help me. My 

3 question was how many violations are you 

4 alleging and I'm now hearing you say that 

5 you're alleging one based on one employee and 

6 two regulations. 

7 MS. PONTO: For purposes of 

8 proposing the civil penalty we considered this 

9 one violation. 

10 JUDGE YODER: Okay. Al 1 right. 

11 Now in doing that did you consider ability to 

12 pay? 

13 MS. PONTO: We considered the 

14 information that we had available about the 

15 company at the time that we proposed the civil 

16 penalty during the informal conference in this 

17 matter. Dr. Selig was given the opportunity 

18 to present financial information about the 

19 state of the company and he declined. 

2 0 JUDGE YODER: Well, we have some 

21 here in the filings. Is that -- I think they 

22 were attached to one of his motions maybe. 

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1 DR. SELIG: The one for human 

2 factors I have my --

3 JUDGE YODER: I' ve got it right 

4 here. Respondent's Reply to Complainant's 

5 Late Response to Respondent's Motion to 

6 Dismiss and Motion to Strike Allegations, 

7 That's something received in docket December 

8 29, 2010 which attaches a profit or loss from 

9 the business. Are you familiar with that, Ms. 

10 Ponto? 

11 MS. PONTO: What was the date of 

12 service of that document? 

13 JUDGE YODER: The docket stamped 

14 date is December 29. I can't tell you the 

15 date of service. I may be able to in a 

16 minute. December 29, 2010. Let me see. It 

17 doesn't appear to have a certificate of 

18 service. Wait a minute. Maybe at the end. 

19 No. But it was stamped into the docket 

20 section on December 29, 2010 and it attaches 

21 a profit or loss from business listing Michael 

22 Selig as the proprietor. And the principal 

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1 business is Helicopter transportation. 

2 Business name M & R Helicopters LLC. 

3 Do you have that? 

4 MS. DOMINIK: We're looking, Your 

5 Honor. 

6 JUDGE YODER: Yes. That's a 2007 

7 and 2008 profit or loss from Business Schedule 

8 C. But obviously if you don't know it exists 

9 you didn't take it into account in considering 

10 the level of penalty. 

11 MS. PONTO: Your Honor, I'm looking 

12 for the pleading. Obviously there were a lot 

13 in the spreadsheet that I have here organized 

14 chronically by the date of service. 

15 JUDGE YODER: Yes, I know. 

16 MS. PONTO: But I don't recall 

17 seeing financial documents attached to any 

18 documents. If we had received them, of 

19 course, we would have provided them to an 

2 0 economist or an appropriate person to evaluate 

21 them and to take into account whether it would 

22 warrant a reduction in penalty. 

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1 JUDGE YODER: In any event, are you 

2 aware of the fact that this M & R Helicopters 

3 is an LLC? 

4 MS. PONTO: I don't recall offhand. 

5 I believe, yes. Yes. 

6 JUDGE YODER: Do you know what an 

7 LLC is? 

8 MS. PONTO: Yes. 

9 JUDGE YODER: Under Pennsylvania 

10 law? 

11 MS. PONTO: Yes, I'm aware of what 

12 an LLC is. 

13 JUDGE YODER: Okay. And if there 

14 were a civil penalty in this case, then is it 

15 your understanding that it would have to be 

16 collected from M & R Helicopters? 

17 MS. PONTO: Yes. 

18 JUDGE YODER: And if that company 

19 has a negative net worth as of the time of the 

20 violations and/or the time of the penalty how 

21 would you propose to collect the penalty? 

22 MS. PONTO: Well, we would have to 

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1 take into account the financial documents that 

2 were provided. We, of course, deal all the 

3 time with companies that are in a situation of 

4 financial hardship, sometimes companies that 

5 are in bankruptcy. And we have procedures for 

6 dealing with that whether it be to file an 

7 appropriate claim or - - We would need the 

8 documents to consider that. And if there are 

9 such documents from the time frame here we 

10 remain willing to consider that. 

11 JUDGE YODER: Dr. Selig, do you 

12 have more current Schedule Cs for your M & R 

13 or what it's now called? 

14 DR. SELIG: (Inaudible) that's 

15 showing $20,000 plus or more in losses. Yes. 

16 They're all losses. Judge. 

17 JUDGE YODER: Could you provide 

18 those to Ms. Ponto? 

19 DR. SELIG: Yes. I mean I also 

20 told Ms. Ponto on our prior discussions in 

21 another pretrial hearing that but she didn't 

22 want to hear it my company hasn't made money 

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1 for years and I have no pilot. 

2 JUDGE YODER: Dr. Selig, we' re 

3 trying to get through this and we started an 

4 hour late. 

5 DR. SELIG: Yes, Your Honor. 

6 JUDGE YODER: So just answer my 

7 questions. We'll get along a lot faster. 

8 Will you provide a copy of that to Ms. Ponto? 

9 DR. SELIG: Do you want 2009? 

10 JUDGE YODER: Whatever you have. 

11 Do you have --

12 DR. SELIG: Okay. 

13 JUDGE YODER: This is 2007 and 

14 2008. 

15 DR. SELIG: Right. 

16 JUDGE YODER: So you have '09 but 

17 you don't have '10 yet. 

18 DR. SELIG: Right. 

19 JUDGE YODER: Okay. 

20 DR. SELIG: '10. I mean I don't 

21 have '10 yet. Right. I have '09, I could 

22 fax that to you at any point. 

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1 JUDGE YODER: That would be fine. 

2 And you could fax it to her and you could fax 

3 it to me as well so I can keep up to speed on 

4 what's going on. My fax number is 2 02 --

5 DR. SELIG: Wait a second. Okay. 

6 Go ahead* 

7 JUDGE YODER: 202-366-7536, 

S DR. SELIG: That one would probably 

9 work. The other one doesn't work. Okay. 

10 JUDGE YODER: Okay. 

11 MS. PONTO: And, Your Honor? 

12 JUDGE YODER: Yes, madam. 

13 MS. PONTO: What we typically 

14 request is a minimum of three years of tax 

15 forms and financial documents. For the tax 

16 forms, the schedules are particularly 

17 important for us to analyze the financial 

18 state of the company. 

19 JUDGE YODER: Okay. I'll let you 

2 0 pursue that with him after we get through 

21 here. But you already have 2007 and 2008 and 

22 '09 would make three years. What else would 

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1 you need besides the Schedule C? Do you have 

2 

3 MS. PONTO: Well, we request the 

4 complete schedules. And we would request at 

5 this point that Dr. Selig send all three of 

5 those years because we haven't been able to 

7 locate in our files that we received the 

8 financial documents that you appear to have* 

9 JUDGE YODER: Do you know if there 

10 are other schedules, Dr. Selig? 

11 DR. SELIG: Our schedules? What do 

12 you mean? My tax -~ 

13 JUDGE YODER: Yes. 

14 DR. SELIG: It has no income. This 

15 company has essentially no income in terms of 

16 expenses. 

17 JUDGE YODER: Dr. Selig, try to 

18 remember my question and answer it. Do you 

19 have other schedules? 

20 DR. SELIG: Yes. 

21 JUDGE YODER: Do you know if there 

22 are other schedules besides the Schedule C 

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1 filing for this company? That's a do-you-know 

2 question. 

3 DR. SELIG: No, I'm not familiar 

4 with that. I know there's a Schedule C. 

5 JUDGE YODER: Okay. The answer is 

6 no. If you have other schedules, would you 

7 send those to me and Ms. Ponto at the same 

8 time or when you can get them? Okay? 

9 DR. SELIG: Yes, Your Honor. 

10 JUDGE YODER: All right, Thank 

11 you. 

12 Now if this case should go to 

13 hearing, Dr. Selig, I gather you would raise 

14 the question of ability to pay. Is that 

15 correct? 

16 DR. SELIG: Absolutely, Your Honor. 

17 JUDGE YODER: And can you -- And 

18 you can reflect on what the effect of the 

19 penalty requested in this case would be on the 

20 ability of your company to continue in 

21 business. Are you in a position to say 

22 anything about that now? 

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• 

1 DR. SELIG: Well, I am going to 

2 leave the practice of medicine shortly. I'm 

3 hoping to transition full-time into this 

4 business. 

5 JUDGE YODER: Don't answer other 

6 questions that haven't been asked. Dr. Selig. 

7 Answer the question I asked. Do you know the 

8 effect of a penalty of this size on the 

9 ability of M & R or its renamed alter ego to 

10 continue in business? 

11 DR. SELIG: I will probably shut 

12 the company down if I have to -- if this kind 

13 of behavior continues against a small company. 

14 JUDGE YODER: Now, Dr. Selig, don't 

15 go there. Just answer my question. And if 

16 the answer is you would probably have to shut 

17 it down, that's one answer. If you would 

18 probably shut it down, that's a different 

19 answer. Which answer are you giving me? 

20 DR. SELIG: Well, I probably would 

21 shut it down. 

22 JUDGE YODER: Okay. All right. 

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1 

2 

3 

4 

5 

5 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

Now let's move on then. Let's see. There was 

a question raised about the venue of this 

case. If it goes to hearing, it's not at all 

certain that I would be the one doing the 

hearing. But nevertheless the venue would 

very likely be in Allentown. 

DR. SELIG: Yes. 

JUDGE YODER: There's the District 

Court there. There's no reason why it 

couldn't be there. As the FAA knows, we try 

to hold these at a site that doesn't penalize 

the respondent. So we would tentatively 

schedule this for a hearing in Allentown. 

All right. Now we have several 

motions pending. And as a matter of fact I 

think you have filed something like 44 motions 

in this case, Dr. Selig. 

DR. SELIG: I think it's closer to 

58. 

JUDGE YODER: Well, whatever it's 

closer to it comes very close to being an 

abusive process and if it doesn't go well 

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1 beyond that. 

2 DR. SELIG: May I comment on that? 

3 JUDGE YODER: Not yet. 

4 DR. SELIG: Okay. 

5 JUDGE YODER: I think at this point 

6 we need to know which of those motions you 

7 consider to be current if any of them. And 

8 when we get through here today, you can 

9 reflect on that because when we get through 

10 here today I think what I will do is 

11 essentially deny all the motions as they exist 

12 now with a requirement that you refile in a 

13 single motion any remaining questions that we 

14 don't dispose of today. 

15 DR. SELIG: Yes. 

16 JUDGE YODER: It's not my 

17 anticipation to wade through 50 motions that 

18 you filed, many of which are redundant. They 

19 address concerns that don't relate to this 

20 case. They rely on principles of law that 

21 don't exist. And so we just aren't going to 

22 go there. 

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1 And I hope that I won't see a 

2 repeat of this kind of practice in the future. 

3 Generally, if you say something to me once 

4 it's going to be enough. And I will not be 

5 happy to have things said to me twice if 

6 they've been -- unless I ask you to. 

7 So now you've made a reference in 

8 one of your pleadings to judicial estoppel. 

9 DR. SELIG: Yes. 

10 JUDGE YODER: No such principle. 

11 Forget about it. You reference an April 4 

12 inspection which they handled in a different 

13 way from the way they handled this one. It 

14 doesn't matter. That's not what's at issue. 

15 What's at issue in this case and 

16 you'd do well to focus on it is whether there 

17 was a violation of these two regulations at 

18 issue here. And that's what I've been trying 

19 to focus on today and I would suggest that 

20 you'd do better to address your attention to 

21 those questions. And if there's a violation 

22 what the level of penalty should be for this 

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1 company. All right. 

2 Now there's a lot of references to 

3 untimely responses. You need to understand 

4 that the service date is the date when things 

5 are mailed. In any event, you will find that 

6 I am much more inclined to decide questions 

7 and cases on the basis of substantive issues, 

8 not procedural technicalities. 

9 DR. SELIG: Yes. 

10 JUDGE YODER: If I were to rely on 

11 procedural technicalities, you might be in a 

12 very deep boat at this point. 

13 DR. SELIG: Yes. 

14 JUDGE YODER: You raised a question 

15 about Ms. Ponto's attorney status. Some of 

16 the things you said in those pleadings 

17 essentially are close to defamation. And you 

18 need to keep that in mind when you make 

19 filings. 

2 0 But in any event I don't know of 

21 any requirement in the FAA rules that FAA be 

22 represented by an attorney. Are you aware of 

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1 any such requirement, Ms. Ponto? 

2 MS. PONTO: No, Your Honor. 

3 JUDGE YODER: Yes. I don't think 

4 you'll find that in the regulations. 

5 Mr. Selig, you aren't represented 

6 by an attorney. And so far as I know there's 

7 no requirement that the FAA be represented by 

8 an attorney. I have no reason to suspect that 

9 Ms. Ponto is not an attorney and I think you 

10 should get off of that question. It's not an 

11 issue in this case and it's not going to be. 

12 Okay. 

13 DR. SELIG: Well, I merely was 

14 inquiring --

15 JUDGE YODER: You weren't just 

16 inquiring. Dr. Selig. There is no wool over 

17 my eyes. I've seen the pleadings that have 

18 been filed. I know what you've said. And you 

19 would --

20 DR. SELIG: Your Honor. 

21 JUDGE YODER: You would do well to 

22 listen to what I'm saying rather than 

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1 interrupting me and trying to argue with what 

2 I'm saying. That is not an issue in this 

3 case. It's not going to be an issue in this 

4 case. Forget it. Okay. 

5 DR. SELIG: Yes, Your Honor. 

6 JUDGE YODER: Depositions are 

7 requested for attorneys in this case. I don't 

8 have any idea what that's about except it has 

9 something to do with whether somebody can 

10 travel to Allentown, Pennsylvania. You don't 

11 need depositions for that question and those 

12 requests are going to be denied, 

13 You had a motion related to 

14 changing the regulations or related to the 

15 fact that the regulations were changed. 

16 You're presumed to know what the regulations 

17 are. You might not like that and I can 

18 understand your problem with not knowing what 

19 all the regulations are. But the fact is the 

2 0 regs are what they are and that's what you 

21 have to deal with. All right. 

22 DR. SELIG: Your Honor, can I 

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1 comment on that for a moment? 

2 JUDGE YODER: When I get through. 

3 You've filed a request to change some of the 

4 regulations. We don't have any jurisdiction 

5 to change regulations and we aren't going to 

6 consider those. So that's something that's 

7 just cluttering my files. 

8 Then you filed a counter complaint. 

9 We don't have any jurisdiction to consider 

10 complaints filed by you. And that's not the 

11 issue in this proceeding. The issue in this 

12 proceeding is the one I have just identified, 

13 whether you violated the regulations in 

14 question and, if so, what the level of civil 

15 penalty should be. If you can keep your mind 

16 focused on those two things you'll come a lot 

17 closer to getting something cleared up in this 

18 case. 

19 Now you had something you wanted to 

20 say about some of those motions. 

21 DR. SELIG: Yes, Your Honor. It 

22 has to do with the regulations in themselves 

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1 that at no point are the Appendices I and J 

2 referenced in either the op specs or the 

3 compliance statement. And furthermore the 

4 most used and most standard referenced -- the 

5 FFA -- also does not contain the I & J 

6 references or any of the 121 regulations. My 

7 op specs --

8 JUDGE YODER: I've got those 

9 appendices here, Dr. Selig. I don't know 

10 where they came from. 

11 DR. SELIG: Yes. They are - -

12 someplace which is not referenced in the op 

13 specs or the compliance statement. 

14 JUDGE YODER: It would be in the 

15 regulations. 

16 DR. SELIG: That's the problem. It 

17 doesn't say where they are, how to locate them 

18 in the op specs and the compliance statement. 

19 JUDGE YODER: Dr. Selig, one of the 

20 things you're going to learn from this case is 

21 being a doctor doesn't make you a lawyer. And 

22 one of the problems with not being a lawyer is 

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1 you don't know everything you need to know in 

2 order to proceed in a case like this. 

3 You keep wanting to argue about 

4 things that I've told you are not the issue. 

5 Do you have anything else you want to talk 

6 about with respect to these motions? 

7 DR. SELIG: Let's see. 

8 JUDGE YODER: I' ve got one more 

9 that I'll mention while you're thinking about 

10 that. Dr. Selig. There is a request in the 

11 filings for an unredacted copy of the 

12 investigator's report. Ms. Ponto, what's the 

13 story on that? 

14 MS. PONTO: Your Honor, at the time 

15 that we provided the EIR we sent a letter to 

16 Dr. Selig indicating that the EIR had been 

17 redacted to remove privileged, pre-decisional, 

18 deliberative, appropriately withheld materials 

19 as is standard from the inspector's report. 

20 That was the only thing that was. 

21 JUDGE YODER: Okay. Do you have a 

22 problem now with providing him a complete copy 

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1 of that? 

2 MS. PONTO: Yes, Your Honor. We 

3 still maintain that --

4 JUDGE YODER: You're going to have 

5 to file something with --

6 MS. PONTO: -- were redacted were 

7 appropriately withheld. 

8 JUDGE YODER: You're going to have 

9 a file something with me and demonstrate that 

10 the things involved are appropriately withheld 

11 or you aren't going to be able to withhold 

12 them. I'll tell you that right now. 

13 MS. PONTO: Okay. Well, Your 

14 Honor, we have responded to his motion 

15 addressing this issue. 

16 JUDGE YODER: Are we still talking 

17 about the same subject? 

18 MS, PONTO: Yes. 

19 JUDGE YODER: File. 

20 MS. DOMINIK: Your Honor, would you 

21 like for us to submit the complete file for 

22 your in camera review? 

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1 JUDGE YODER: I want you to file 

2 with me a document indicating the basis for 

3 withholding that information with precedence. 

4 MS. PONTO: Well, we -- what we 

5 have already provided and I believe is already 

6 in the record --

7 JUDGE YODER: Ms. Ponto, I'm not 

8 asking what's in the record. I'm telling you 

9 what you're going to have to do to keep from 

10 providing this document. 

11 MS. PONTO: Okay, Your Honor. 

12 MS. DOMINIK: Okay. 

13 JUDGE YODER: Yes. Thank you. All 

14 right. 

15 DR. SELIG: Judge --

16 JUDGE YODER: Is there anything 

17 else. Dr. Selig? 

18 DR. SELIG: Yes. In reference to 

19 that particular spoliation of documents, I did 

20 request specific references in the method in 

21 which they did redact and spoliate those 

22 documents. And they refused to provide me in 

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1 the typical manner in which they --

2 JUDGE YODER: Did you hear what I 

3 just said, Dr. Selig? 

4 DR. SELIG: Yes, Your Honor. 

5 JUDGE YODER: Do you have anything 

6 further with respect to any of these motions? 

7 DR. SELIG: Off the top of my head 

8 I --

9 JUDGE YODER: This is not your last 

10 chance. You can file something further if you 

11 are so advised. I would caution you with 

12 respect to further filings. Because frankly 

13 the filings that you've made to date have not 

14 done you much good and raise serious questions 

15 not about anybody else but about the filings. 

16 DR. SELIG: Your Honor, my problem 

17 is that I' ve attempted to communicate Ms. 

18 Ponto and she has refused to address them head 

19 on. She's side-stepped many issues, 

2 0 JUDGE YODER: But you're filing 

21 motions with me, Dr. Selig, and you're filing 

22 the same motion over and over and over and 

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1 over. I don't appreciate that. Do you 

2 understand what I'm saying? 

3 DR. SELIG: Yes, Your Honor. 

4 JUDGE YODER: I hope you're hearing 

5 me. 

6 DR. SELIG: Yes, I understand. Your 

7 Honor. 

8 JUDGE YODER: I don't want to see 

9 a repetition of that. If you have something 

10 that has to be filed, then you file it just 

11 like anybody else would. But if you keep 

12 f i 1 ing things in the way you' ve been f i 1 ing 

13 them and I don't think it's going to benefit 

14 you. Do you understand what I'm saying? 

15 DR. SELIG: Yes, Your Honor. 

16 JUDGE YODER: Good. Okay. I think 

17 that -- Now I think I've heard you say that 

18 you intend at some point to continue doing or 

19 to resume 135 operations. Is that correct? 

20 DR. SELIG: Yes. That's right. 

21 It's part of my process, yes. 

22 JUDGE YODER: Now is -- Ms. Ponto, 

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1 is the outcome of this case going to impact 

2 his ability to do Part 135 operations? 

3 MS. PONTO: If there's a finding of 

4 violation that would be on the record. But 

5 that wouldn't impact his ability to operate. 

6 JUDGE YODER: He could still do 

7 Part 13 5 operations despite the finding of 

8 violations. 

9 MS. PONTO: Yes, Your Honor. 

10 JUDGE YODER: Yes. Okay. And based 

11 on what you said then, Dr. Selig, I gather 

12 that to surrender your certificate is not one 

13 of the possibles as a vehicle for settling 

14 this proceeding. 

15 DR. SELIG: I'm not sure at this 

16 point. I just can't be under this kind of 

17 harassment. 

18 JUDGE YODER: Right. Okay. Let me 

19 tell you where we're going from here. What I 

20 want is for you to provide the financial date 

21 that we've talked about. And then I want you 

22 to talk with Ms. Ponto or Ms. Dominik or 

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• 

1 whomever is representing them in connection 

2 with those discussions and see if you can't 

3 get some resolution of this case. 

4 Frankly, this is a case that ought 

5 to be settled. And if it isn't settled, then, 

6 Ms. Ponto, I hope you've been keeping a record 

7 of the things you need to brief because those 

8 are going to be briefed within a period of 

9 time that you choose after you advise me that 

10 the case isn't settling. Do you understand 

11 what I'm saying? 

12 MS. PONTO: Yes, Your Honor. 

13 JUDGE YODER: Okay. So we're going 

14 to have a date for him to provide you with 

15 financial data. Then we're going to have a 

16 date for you to let me know whether the case 

17 can be settled. 

18 And I would trust that in reviewing 

19 that you would focus on in-house, at least, on 

20 the legal issues that have been raised in the 

21 course of this pre-hearing conference. That 

22 is the impact of Appendix J without a 

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1 moonlight amendment, the presence of the Judge 

2 Kolko decision on the question of whether this 

3 is a requirement apart from someone doing 

4 operations and whether that case reaches the 

5 point that we've got here. The concern is 

6 that that case discussed the intent of the 

7 regulation and whether its intent was to 

8 impact operations as distinct from companies 

9 that aren't doing operations. So you should 

10 keep that in mind and reflecting on that and 

11 that should be in your brief. 

12 Then you should also address the 

13 question of pursuing a full penalty against H 

14 & R Helicopters given whatever the financial 

15 status of it is shown to be by the documents 

16 that you're going to receive. Okay. 

17 And while they are doing those 

18 briefs. Dr. Selig, you can reflect on whether 

19 there's any further motions that you feel you 

20 have to file. But I would really caution you 

21 against filing motions that are not 

22 specifically related to the issues as we've 

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described them today. Do you understand what 

I'm saying? 

DR. SELIG: Yes, Your Honor. 

JUDGE YODER: Okay. That will let 

you get back to your practice instead of 

preparing volumes of pleadings, 

DR. SELIG: That would be a 

pleasure. 

JUDGE YODER: But meanwhile what 

you need to do is you need to provide those 

financial statements. Now when are you going 

to be able to do that? 

DR. SELIG: In ten minutes. 

{Laughter.) 

JUDGE YODER: I thought you didn't 

know whether you had any beyond the Schedule 

Cs. 

DR. SELIG: I'll just send you 

whatever I have I guess. 

JUDGE YODER: Okay. All right. So 

that's for three years and you'll send those 

right away to Ms. Ponto and to me. And do you 

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1 have a fax number for Ms. Ponto? 

2 DR. SELIG: I do. 

3 JUDGE YODER: Okay. 

4 MS. PONTO: Your Honor, I would 

5 have to interj ect though and point out that 

6 depending on what we get for financial 

7 information the Agency needs enough 

8 information to actually be able to perform a 

9 meaningful analysis of the company' s financial 

10 state. And that's why we generally need --

11 JUDGE YODER: If you don't have 

12 enough to do a meaningful analysis, Ms. Ponto, 

13 you let me know. 

14 MS. PONTO: Thank you, Your Honor. 

15 JUDGE YODER: In a motion for 

16 whatever it is you think you need. 

17 MS, PONTO: Okay. 

18 JUDGE YODER: And I don't know what 

19 that's going to be. What do you think it's 

2 0 going to be beyond Schedule C? What do you 

21 need besides Schedule C? This is a --

22 MS. PONTO: Generally, we need the 

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1 full schedules. It's my understanding and, of 

2 course, I'm not an economist. We generally 

3 ask someone appropriately educated to perform 

4 this kind of analysis to look at it. It's my 

5 understanding that Schedules L and M are 

6 particularly important because we look at the 

7 assets, liabilities, debts of the company. So 

8 they perform a complete analysis. But we need 

9 the full schedules. 

10 JUDGE YODER: Dr. Selig, are these 

11 filings prepared for you by an accountant? 

12 DR. SELIG: Yes, they are. 

13 JUDGE YODER: Okay. Then you 

14 should have whatever. So you will have the 

15 complete filings that you made in each of 

16 those years. 

17 DR. SELIG: That's correct. 

18 JUDGE YODER: Okay. So you can 

19 provide those. 

20 DR. SELIG: Yes. 

21 JUDGE YODER: As you sai d i n te n 

22 minutes. 

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1 DR. SELIG: (Laughter.) 

2 JUDGE YODER: Well, in any event, 

3 we will assume that those will be provided by 

4 COB next week some time? 

5 DR. SELIG: Yes, sir, 

6 JUDGE YODER: Let's see. Twenty7 six, 27, 28, 29th would be Tuesday. By COB 

8 Tuesday? I mean if you have them before then, 

9 that's fine. But I want to make sure there's 

10 a specific date by which they will be 

11 provided, 

12 DR. SELIG: Yeah. I'm pretty sure 

13 I have them all here in my home office. 

14 JUDGE YODER: Okay. We will fix 

15 March 29 as the date by which those will be 

16 faxed to Ms. Ponto and to me. All right? 

17 DR. SELIG: Yes, sir. 

18 JUDGE YODER: Okay. Then I want 

19 you folks to talk about settling this and you 

20 folks can settle it on any basis that you 

21 choose. That can involve future operations or 

22 it cannot involve future operations. It can 

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1 involve the payment of a penalty or it cannot 

2 involve the payment of a penalty. That's up 

3 to you folks. 

4 And I would encourage you to be 

5 insightful in trying to reach some sensible 

6 conclusion of what frankly is one of the least 

7 sensible cases I' ve seen in 35 years as a 

8 judge, 

9 DR. SELIG: Your Honor, if I may 

10 just inject. I mean I have some pretty 

11 unusual and significant skill sets that I can 

12 provide to the public. 

13 JUDGE YODER: Well, I'm not going 

14 to go there. So don't talk -- You don't want 

15 to open up a whole new bag of tricks, Dr, 

16 Selig. We've got enough problems on the table 

17 as it is. All right. 

18 DR. SELIG: I understand. 

19 JUDGE YODER: Okay. So that's 

2 0 going to be here by COB Tuesday. 

21 When will I hear back from you, Ms. 

22 Ponto, on whether this case is going to be 

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settled? 

MS. PONTO: Well, Your Honor, as 

soon as we receive the financial documents, 

we'll perform the analysis. I would assume --

(Off the record comment.) 

Yeah, we would want to give our 

analyst a week to review the documents and 

then allow the parties a week to discuss 

settlement. 

JUDGE YODER: Okay. Two weeks from 

March 29th? 

MS. DOMINIK: HOW many? Two or 

three. Your Honor? 

JUDGE YODER: Well, I'm asking you 

folks. I'm not trying to push you into 

anything. I'm just trying to get a date. 

MS. DOMINIK: Let us look at a 

calendar real quick. Your Honor. 

JUDGE YODER: Wei1, three weeks 

would be --

MS. PONTO: April 19th. 

JUDGE YODER: April 19th. 

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1 MS. DOMINIK: Okay. 

2 MS. PONTO: Right. I think that's 

3 a good date. 

4 JUDGE YODER: And I want you folks 

5 to understand that all of these dates are 

6 delivered in my hands. 

7 MS. PONTO: Okay. 

8 MS. DOMINIK: Yes, sir. 

9 JUDGE YODER: To be provided to me. 

10 Contrary to the normal rule with respect to 

11 filing, it's in my hands when it' s in my 

12 hands. And, Dr. Selig, for your information, 

13 we don't send anything by regular mail. 

14 Anything you send by regular mail goes to West 

15 Virginia or New Jersey and gets irradiated and 

16 then comes back to us and we have to peel the 

17 pages apart. 

18 DR. SELIG: Oh. 

19 JUDGE YODER: Never send anything 

20 by regular mail. Okay? 

21 DR. SELIG: Oh, okay. 

22 JUDGE YODER: But in this 

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1 particular case you can't send it by anything. 

2 It's not going to get things to me on the date 

3 that they're required. All right. 

4 DR. SELIG: Yes. 

5 JUDGE YODER: All right. So then 

6 the next thing is if you tell me on April 19 

7 that this case is not settling then you need 

8 to provide me with the brief addressing the 

9 points that we have discussed, Ms. Ponto. You 

10 will recall what they are. 

11 MS. PONTO: Yes, Your Honor. 

12 JUDGE YODER: They are in the 

13 transcript and they include the applicability 

14 of moonlighting to this situation and the 

15 amendments to Appendix I without an amendment 

16 to Appendix J and the applicability of the 

17 Everson case and the calculation of the civil 

18 penalty and the viability of proceeding for 

19 civil penalty given the financial statements 

2 0 of this company. Oh, and you also need to 

21 provide me with that unredacted copy of the 

22 investigator's report or include in your brief 

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1 your position with respect to providing it 

2 along with precedence for not providing it. 

3 I don't know if you've had cases with me 

4 before or not, Ms. Ponto* 

5 MS. PONTO: I haven't personally. 

6 No. 

7 JUDGE YODER: In general, you will 

8 find that we try to run transparent 

9 proceedings. We don't go to hearings until we 

10 know what is actually at issue. And we try 

11 not to deal with things that aren't issues. 

12 We try to deal with things that are issues 

13 openly and that's what we aimed to do in this 

14 case. Okay? 

15 So that's what you need to do and 

16 the question is by when will you do that. I 

17 mean we have you up to April 19. And now the 

18 question is when do I get my papers if you 

19 don't get this thing settled. 

2 0 DR. SELIG: Your Honor. 

21 JUDGE YODER: Yes, sir. 

22 DR. SELIG: I had some issues about 

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1 the actual statute of limitations. 

2 JUDGE YODER: Forget it. 

3 DR. SELIG: Because -- All right. 

4 Because it states really that they --

5 JUDGE YODER: You had a reference 

6 to a one year statute. There isn't a one year 

7 statute. 

8 DR. SELIG: Well, two years. They 

9 claim that in one --

10 JUDGE YODER: That is an issue 

11 about the timing of the service. 

12 DR. SELIG: Well, no. I asked them 

13 to give me a postmark for when they actually 

14 filed -- when they actually put the postmark 

15 on that (Phone beeps) the two year period. 

16 They're claiming it's one day. They're 

17 claiming documentation that was one day before 

18 the statute of limitations, a two year statute 

19 of limitations. I'm claiming --

2 0 JUDGE YODER: Did you get a service 

21 list? Did you get a certificate of service? 

22 DR. SELIG: I'm not sure if I got 

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1 one on that. 

2 JUDGE YODER: Do you have a 

3 certificate of service on the complaint, Ms. 

4 Ponto? 

5 MS. PONTO: Your Honor, the notice 

6 of proposed civil penalty is what he's 

7 referring to and that doesn't have a formal 

8 certificate of service. 

9 JUDGE YODER: Okay. And that is --

10 So how do you compute the date? The date of 

11 the notice? 

12 MS. PONTO: Yes, it's the date of 

13 the notice. 

14 JUDGE YODER: And that's the date 

15 it's mailed. 

16 MS. PONTO: Exactly. 

17 DR. SELIG: That's the problem. 

18 Those dates of mailing they have different 

19 draft dates on those documents and they sit 

20 around for sometimes three to five days. So 

21 that's why I wanted them to produce the actual 

22 postmark date because I got that penalty. 

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1 JUDGE YODER: Do you have a 

2 postmark date, Ms. Ponto? 

3 MS. PONTO: Your Honor, the draft 

4 dates he's again referring to I believe is his 

5 misunderstanding as to the service date. 

6 That's the date we put it in the mail. It's 

7 not a draft date. That is the date of 

8 service. 

9 JUDGE YODER: I understand. 

10 MS. PONTO: Three to five days 

11 later is when he receives it. 

12 JUDGE YODER: I understand that, 

13 but he's saying that there's -- The postmark, 

14 is there a postmark? 

15 MS. PONTO: I'm looking to see if 

16 we have it. 

17 JUDGE YODER: If you have it, give 

18 it to him. If you don't have it, you don't 

19 have it. 

20 Anything else, Dr. Selig? 

21 DR. SELIG: I'm saying if they 

22 don't have it, then the case passed the 

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1 statute of limitations. 

2 JUDGE YODER: Oh, it isn't, Dr. 

3 Selig. It has a presumption of regulatory. 

4 If it purports to have been served on that 

5 date, we're going to assume it' s served on 

6 that date unless there's something that says 

7 something else. 

8 Dr. Selig, I really encourage you 

9 to focus on what I have told you are the 

10 issues in this case and stop looking for Perry 

11 Mason solutions. Do you understand what I'm 

12 saying? 

13 DR. SELIG: Yes, Your Honor. It's 

14 just I've gotten hit with these dates with a 

15 notice from the United States Supreme Court at 

16 this point. 

17 JUDGE YODER: Dr. Selig, I have 

18 seen what you have been hit with and you have 

19 papered this record in a way that I have never 

20 seen before. Ever. And I've been doing this 

21 as long as you've been a doctor and then some. 

22 DR. SELIG: Yes, Your Honor. 

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JUDGE YODER: I Would encourage you 

to focus on what the real issues are and 

comply with the directions in this pre-hearing 

conference and then try to get this case 

settled. I don't know who will try this case 

if it winds up going to hearing. They might 

not be as nice as I am. Who knows. Do you 

understand what I'm saying? 

DR. SELIG: Yes, Your Honor. 

JUDGE YODER: What I need you to do 

is focus on the real issues. That's what I've 

been trying to get all of you to do all day. 

Okay? 

DR. SELIG: Yes, Your Honor. 

JUDGE YODER: Okay. 

Ms. Ponto, you understand my 

direction. 

MS. PONTO: Yes, Your Honor. I 

just have a few remaining questions. 

JUDGE YODER: Oh, I' m dealing with 

this one first. If you have a postmark, you 

will provide it to me and Dr. Selig. 

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1 MS. PONTO: Yes, Your Honor. 

2 JUDGE YODER: All right. What do 

3 you have left? 

4 MS. PONTO: You've indicated that -

5 

6 JUDGE YODER: I need a date. 

7 MS. PONTO: Oh, I'm sorry. 

8 JUDGE YODER: A date after 4/19 

9 when you're going to brief all of these 

10 things. 

11 MS. PONTO: Is May 27th acceptable? 

12 JUDGE YODER: Yes. May 2 7th. 

13 Okay. All of that will be done in hand on May 

14 27th, 

15 And then, Dr. Selig, I don't know 

16 whether you'll want to respond to that or not. 

17 But if you do, how much time would you want? 

18 DR. SELIG: I'd probably need two 

19 to three weeks depending on my schedule. 

20 JUDGE YODER: Well, we'll make it 

21 three weeks. That's 21 days after May 2 7 

22 which should be June 18. Is that right? So 

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that's your reply date. And if you have 

anything that you want to file as a motion it 

would come in on May 2 7 and their response 

would be due June 18. 

DR. SELIG: Okay. 

JUDGE YODER: Meanwhile, I don't 

want to see paper on this case. I'm not 

telling you you can't file things. But I do 

not want a repeat of what I've seen happening 

since this case started. 

DR. SELIG: Yes, Your Honor. 

JUDGE YODER: All right. 

Now you had something else, Ms. 

Ponto? 

MS. PONTO: Yes, Your Honor. 

You've indicated if I understand correctly 

that you are prepared to rule on the 

outstanding motions after this call. 

JUDGE YODER: I said that they, 

except as indicated in this call, will be 

treated as denied. 

MS. PONTO: Okay. There were two 

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1 motions this week that were filed that we have 

2 not yet responded to. 

3 JUDGE YODER: They are denied. 

4 MS. PONTO: Okay. Thank you. 

5 JUDGE YODER: All motions 

6 heretofore are treated as denied except for 

7 the one with respect to the providing of the 

8 investigator's report and you know how we're 

9 supposed to deal with that. And if any of 

10 those motions need to be renewed, I would do 

11 that with great care and those would be due on 

12 May 27. 

13 Okay. Anything else you had, Ms. 

14 Ponto? 

15 MS. PONTO: No, Your Honor. 

16 JUDGE YODER: Okay. 

17 Anything else, Dr. Selig? 

18 DR. SELIG: Not at the moment. 

19 JUDGE YODER: Okay. You folks get 

20 this case worked out and we'll have those 

21 financial things by March 29 and you will then 

22 get back to me by April 19 and let me know 

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1 what you've accomplished. And Ms. Ponto will 

2 do that, Dr. Selig. There's no reason you 

3 can't. But generally Complainant's counsel 

4 calls or sends me a notice with a copy to you 

5 indicating what the results of those 

6 settlement efforts have been. Okay? 

7 DR. SELIG: Yes. 

8 JUDGE YODER: Okay. If there's 

9 nothing that concludes the pre-hearing 

10 conference. Thank you for your --

11 MS. PONTO: Your Honor. 

12 JUDGE YODER: Yes. 

13 MS. PONTO: I'm very sorry to 

14 interrupt. But before we get off this call 

15 because we will want to engage in settlement 

16 discussions and in the past I've had trouble 

17 reaching Dr. Selig by phone, I'm wondering if 

18 there's another way, Dr, Selig, I could reach 

19 you to further our settlement discussions if 

20 there's an email address or some form that I 

21 could communicate with you once we've been 

22 able to analyze the information and we can 

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1 discuss settlement . 

2 DR . SELIG : Yes . 

3 Lifelinecard@rcn.com. 

4 MS. PONTO: Okay. To confirm 

5 that'sLifelinecard@rcn.com, L-I-F-E-L-I-N-E6 C-A-R-D@R-C-N.com? 

7 DR. SELIG: Correct. 

8 JUDGE YODER: And that's one word, 

9 Lifelinecard? 

10 DR. SELIG: Yes. 

11 JUDGE YODER: Okay. 

12 MS. PONTO: And to confirm you 

13 could also send me an email. My email address 

14 laura, L-A-U-R-A, dot ponto, P-O-N-T-0, 

15 @FAA.gov. Okay. 

16 DR. SELIG: Thank you. 

17 MS. PONTO: Thank you. 

18 JUDGE YODER: Okay. Anything 

19 further, folks? 

20 (No response.) 

21 If not, that concludes the pre22 hearing conference. I'm glad we were finally 

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able to get everybody together and hopefully 

that will simplify and expedite this 

proceeding. That concludes the pre-hearing 

conference. Thank you both. Off the record. 

{Whereupon, at 5:08 p.m., the 

above-referenced matter was concluded.) 

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abatement 41:21 

42:6,9 43:3 

ability51:ll 59:14 

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able 25:12 47:11 

52:15 58:6 70:11 

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above-entitled 1:17 

above-referenced 

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abusing 13:16 

abuslve61:22 

acceptable 91:11 

accomplished 94:1 

account 53:9,21 

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accountant 79:11 

accounts 18:2 

action 12:17 

actions 17:21 

active 18:11 

activit> 8:11 

actual 39:9,10 86:1 

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address4:12 15:22 

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39:1540:1 62:19 

63:20 72:18 76:12 

94:20 95:13 

addressed 37:8 

addresses 33:13 

addressing 70:15 

84:8 

Administration 1:8 

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ADMINISTRAT... 

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advise 75:9 

advised 72:11 

affirmative 15:6 

affirming 19:10 

Agency 24:11 78:7 

Agency's 18:12 

ago 34:4 

agreed 3:17 

Ah 50:15 

ahead 57:6 

aimed 85:13 

Air 8:21 9:20 10:1 

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aircraft 42:11 

alcohol 4:21 6:1,17 

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alert 29:8 30:2 

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allegation 22:11,22 

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aUeged4:15 18:19 

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alleging6:7 16:2 

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Allentown 2:21 

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allow 7:7 82:8 

allowance 7:20 

allowed 7:21 10:16 

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allows 15:13 

alter 60:9 

amended 12:4 

amendment 36:19 

36:1976:1 84:15 

amendments 14:11 

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analysis 78:9,12 

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analyst 82:7 

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Neal R. Gross £: Co. , 

202-234-4433 

Inc 
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Neal R. Gross & Co., Inc. 

202-234-4433 
Pag e 107 

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Neal R. Gross & Co., Inc 

202-234-4433 
108 

CERT I FICAT E 

This is to certify that the foregoing transcript 

In the matter of: M£CR Helicopter 

Before: us DOT/FAA 

Date: 03-25-11 

Place; {telephone conference) 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND A\/E., N W. 

(2D2) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.ra(n