08/02/2012 10:28PM FAX

Micha.eJ B. Selig 2816 Orefield Road Allentown, PA. 18104 August 3. 2012 

### 12 U.$. DEPARTMENT OF TRANS.IJORTATION OFFICE OF HEARINGS WASHINGTON, 

### D.C. 

## -'-------· Federal Aviation Adndnistration Complainants 

# "· M & R 

### Helicopters. LLC. Respondent , 2010-1211

RESPONDENT'S APPEAL BRIEF TO DISMISS COMPLAJNT li!0001/002B

Notice: The**Re~pondcnt** requests another separate Jurist to review this appeal.
I. INTRODUCTION The subject citationarose as a hypothetical, perhaps indiscrhninant violation ofPart 121, I and J drug and alcohol abatement regulations that were poorly defined, have subsequently been changed 2 times and were relocated to various 

### links on unreferenced websites. The changed

### and revised regulations


### were never listed or 

### signed off

### in the outdated operation specifications or compliance statements by Respondent. The operation specifications and compliance statements that referenced these regulations were never updated

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by Flight District Standards. MR Helicopters. LLC. (MRH) was always compliant with'the regulations prior to the unannounced and un·notified change in regulations.. There was never any notification process by the agency to confirm such changesever occurred, contrary to the procedures ofall other ·partsofthe compliance statement and operational specifications. Moreover, there was no reference in the operation specifications to the location of the regulation or methods ofcompliance for regulations that were blindly changed. Noneofthe local agency officials in contact with Respondent and doing frequent inspections ofthe respondents operation were ever aware of the changes. The initiation ofthe subject citation was based solely on the assumption thatA/P mechanic Edward Bakerwas

### not onany approved Dmg/Alcohol abatement program when he performed a rotor tract and balance**check~** (without making any changes) according to Inspector StatementlOP 9 record (Exhibit R·S). This was soon disproved when 

### it was shown that Mr. Baker was always and continuouslyon a program by his primacy full time 

### employerAir Methods Corporation and the National Guard. It was asserted that Mr. Baker was considered an employee ofMR Helicopters even though he was employed full time for Air Methods Corporation 

### and only worked f:ree lance, one d11.y e'Vef'J' 2 years, requiring him to be on a drug/alcohol program for Air Methods and MR Helicopters. The hypothetical and procedural over reaching subject citation was aggressively pursued over the last 3 years for a proposed activity that occurred

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### in 2008, 

### despite the fact that MR Helicopter's operation was non-functioning, non-operational, did no part 135 flights, had no incident or accident and did not expose the public 

### to any 

### safetyrisk. The Limited Liability Company operated at a loss, incurred a name change, closed its bank accounts and was unauthorized to perform part 135 

### flights without a certified part 135 pilot, during the cited violation 

### period and has not 

### since then. Nonetheless, the citation was aggressively pursued despite its operation specifications or 

### compliance statements were outdated, incomplete, invalid and being revised to reflect the name change and advised by 

### the FSDO to not operate until the op specs and 

### compliance statements are revised.

II. STATEMENT OF FACTS MR 

### Helicopters, LLC, 

### onJuly 21, 2009, was audited by**'ft~** 

### Officers, LatonyaWilliams and 

### Kimmy Poon for the 

### initial scheduled inspection. On July 

### 23, 2009, FM Officer, ·Latonya Williams returned alone for further ·inspection ofthe 

### MRH drug 

### consortium records. Ms. Williams's 

### behavior during that non-accompanied visit was offensive and unprofessional throughout theinspection, and a complaintwas filed in thatregard. Ms. William's took an excessive amount oftime in doing her inspection, OV'er 

### 3 hours. Ms. 

### Williams insisted on a spur of the momentletter written to her, addressing several matters. Ms. 

### Williams postulated that mechanic Edward Baker was not covered under 

### any FAA-ml:\ndated drug testing program and she refused to deviate

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from that false theory, despite later noting otherwise. It was proven Mr. Baker at all times was subject to a random drug and alcohol testing program and
never had a history ofa positive testingresult in the over 30+ years of performing safety sensitive functions as a pilot and mechanic. Ms. Williams also disclosed that therewas a regulation change that occurred in Feb.ruary 2004, requiring all A & P mechanics to be on a company specific drug and alcohol program. Ms Williams did not provide the specific details I"eferendng this policy change or training or compliance procedures. It
was admitted that no notification system was put into place, inconsistent with FAA 

### flight operations and maintenance protocols. MRH was not notified or aware ofthis policy change and even more**unsettling~** the FAA ma1ntenance inspector 

### Gerry Henningerfor MRH. also was not aware and was therefore unable to inform MRH ofthis change duringthe 5 year plus period that he 

### frequently inspected 

### the MRH aircraft, located 

### at Lehigh 

### Valley International Airport (ABE) and across the street from the Allentown Flight Standards District Office (FSDO). In fact none ofthe management personnel including the 

### PrimaryInspection 

### Officer, FrankAlotta or 

### the Allentown FSDO were informed ofthe regulation change during that period as well. Ofparticular concern, in Aprll of2004, 2 months after the regulation changed, MRH underwent a Drug and Alcohol program inspection by FAA drug abatement officer, Vincent Roots and no significant discrepancies were cited (Exhibit R·2). Mr. Roots did not inform**MR~** that the regulation concerning all mechanics being on the specific companies drug program·had changed. It was
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apparent that not all the FAA drug abatementpersonnel were informed oftheir
own 

### in house regulation change. Mr. Roots did notmention orprovide 

### instruction or 

### trainingregarding referencing regulations 

### that were not readily apparent, updated orwritten in the compliance 

### statementor operation specificationsJ nor recommended compliance procedures or ofa notification system that was in place, similar to FAA operations and maintenance protocols.· Respondent explained to Ms. Williams that MRH was unable to and unauthorized to perform part 135 operations sinceJune 2007 (Exhibit R-6), due to human factors and extenuatingcircumstances impacting the single pilot operator (high conflict, protracted divorce, liability 

### issues, etc.) either was unavailable to take his 

### flight·exam or the inspectorwas unavailable to perform
a 

### flight exam (medical leave). MRH had since also 

### ceased operatingunder 

### the
name (Exhibit R-7) and the certificate number 

### therebyrendering the complaint moot. A1lfinancials were 

### terminated under- the MRH name. On August 14, 2009. Ms. Williams's letter informed MRH that the above violations were under investigation. Ayear after the audit> onJuly 23, 2010, Respondent was served with a Notice ofProposed Civil Penalty, citing a potential**fin~** of$5400 (Fifty Four Hundred Dollars) from 

### Laura Ponto for the proposed violation that occurred in 2008. On August 6, 20101 Respondent sent 

### a letter to Ms. 

### Ponto detailing 

### the statements offact, evidence and request {or 

### an informal hearing. On October 1, 2010, 

### an**in~ormal** telephone hearing was held before

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field manager Amy Frankel, attorneys Charles Raley and Ms. Ponto. On October 21, 2010, respondent was served with the Final Notice of· Proposed Civll Penalty 

### for a fine 

### of$5400.and 

### incomplete and redacted copies ofthe Enforcement Investigation Report. It did not include updated information requested by FAA inspector Chet Stevenson, for the confirmation of employment by Air Methods Corp and that Mr. Bakerwas continually enrolled in a drug 

### and alcohol program (Exhibit A-9). The complaint was amended twice. On December 10, 2010> the fine
was reduced to $4400. On March 25, 2011, a pre-trial teleconference was held with Chief Administrative Judge Ronnie Yoder, when the parties were advised to settle the
case. 

### Terms to agreement could not be mutually 

### met. On**J~nuary** 26-27, 2012, before the Honorable Richard Goodwin a trial
was conducted. OnJune 18, 2012, the decision was rendered to sanction Respondent for $4400, despite the submitted evidence that the 

### Limited Liability Companywas non operational, imposed no risk to the public, operated ata 

### loss, changed its name, 

### demonstrated inability to pay and the other evidence that supports that the sanctioning represents cruel and unusual punishment.

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IJI. ARGUMENT

1. RESPONDENT HAD AN ACTIVB PART 119 CERTIFICATE WITH OPERATIONAL SPECIFICATIONSAUTHORIZING PART 13S OPERATIONS. 

### This statement by 

### the Complainants 

### is 

### erred. This hypothetical 

### and 

### tar reaching subjectcitation was aggressively pursued 

### despite the fact that MR Helicopters**LLC~s** operation was non·opc::rational, did no part 135 flights. incurred a name change, 

### closed its bank accounts and was unauthorized 

### and unable to perform part 135 flights without a certified part 135 pilot even prior to the cited violation period and subsequently thereafter. In addition, MRH's operational specifications were not current, never updated, contained only signed offdrug abatement

### regulations from January 2004, before the drug/alcohol regulations had changed and was 

### nevernotified ofdrug abatement 

### regulation change The Complainants primary stance ha.s been thatjusthavinga listed Part 119 certificate entitles the agency to violate an operatorirrespective ofany other conditions. common sense, extenuating or otherwise. The only reference cited by Complainants to suggestthat MRH was operational was a website listingonly that MRH had a certificate number. For instance, the operational specifications


### were to be updated and the Flight StandardsDistrictOffice (FSDO) instructed Respondent not to perform flights until the op specs were updated to reflect the

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new name in accordance to the 

### compliance statement that clearly

### prohibits operations. aftr=r the name ofthe company changed. 

### 119.9 Use of business 

### names. (a) DR Helicopters LLC under this 

### part may not 

### operate an aircraft 

### under part 121 

### or part 135 of this chapter 

### using a 

### business name 

### other than a business name appearing in the 

### certificate holder's operations specifications.**~v** .......,.U/ VYIIC.,V



### Anotherreason why the operatorwas**unauthori~ed** to 

### conduct operations. The Complainant continuously acknowledged 

### that MRH's 

### op specs were notupdated 

### to reflectthe new drug abatement changes by the**FSDO~** since the op specs were signed offbefore the regulations had 

### changed and went into 

### effect. Complainants erred by asserting thatexposure and liability for a violation is 

### warranted based solely onJ20Ssessing operating

### sgecifications even if'l.lnder 

### the wrongname and having not performed any part 135 flights. How could the operation be active ifitwas unable to carry out operations 

### because there was no ) qualified pilotorhad undergone a name change? 

### Respondentalso 

### exercised soundjudgmentin the best interests and safety ofthepublic in- addition under
. part 119.69 to withdraw all part 135 operations 

### due to human factors 

### beyond 

### his control (protracted 

### divorce}. Respondent also could not

### maintain his other functions in 

### the company, as Director ofOperations and Maintenance Coordinator for which he bears all 

### liabilities. Why should the Respondent be 

### punished for exercisinggoodjudgment?**~** 8-

820/800

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In order to be authorized to conduct operations several conditions must be met. First, the operational specifications and compliance sta.ternentsrequired updating) to reflect the new name and currentwith confirmatory signatures. 

### This was not 

### the case with MRH, particularly

### with regard to

### the Drug program references. The company also underwent a corporation and name 

### change makingthe operation specifications invalid 

### (Exhibit**R~**7)
To conduct part 135 operations, the pilotmust comply with the requirements in the regulations. have the experience levet undergoyearly recurrency training as well as undergo a yearly oral and flight examination by an 

### FAA 

### examiner.· None ofthis occurred or

### was in place; therefore itwas impossible 

### forMRH to 

### be authorized 

### to conductpart 135 operations, sinceJune of2007. 

### 1he case law precedents found for this case a.re the Everson and the Helicopter Flite matters. In both 

### instances, there were active 

### part 119 certificates, that were ·in less ofa state ofconfusion as was MRH, yet no violation was imposed to these operators, because no part 135 flights were 

### performed.



### 2. 

### IN THE MATTER OF DAVID E. EVERSON D/B/A NORTH

### VALLEY HELICOPTERS, INC., FAA 

### ORDERNO. 2004-5. Judge Yoder made 

### reference to the currentcase lawregarding violations to operators notengaged inoperations- The bottom line conclusion ofthis case

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was the court ruled that the violation is 

### invalid
"BECAUSE EVERSON HAD NOT FLOWN ANY AlR CARRIER OPERATIONS DURING THE RELEVANT PERIOD" [SIC) and the Judge dismissed the FAA complaint (FAA Order No. 2004-5, page 

### 6,



### , 2)

Complainantspresented arguments that simplydo not apply. . @0010/0028

Complainants.contemplatedthat not performing operationsprior to commencing
a drug/alcohol program is different than notconducting operations during a period ofshutdownwhen the agency sought a violation, when the operation did have an active drugprogram. In the Eversoncase, a program was mandated 

### to be started 60 days after approval ofthe program prior to commencing operations which was not done. On inspection ofhis operations specifications no drug program was inplace. The case was still dismissed. The co.rnmonalicy betweenthe Everson case and MRH 1s case is that no flights oroperations were conductedduring the relevant period. Therefore, no possible risk orharm presented to the public. The primary premise that initiated theviolation was 

### thatMr. Bakerwas 

### not on any program. MRH didhave its own drug

### program and ·implemented that 

### program for those not Qn,MY approved program 

### and in accordance to the operation specifications sign offdate ofJanuary 2004 prior to the regulation change and the maintenance inspector's knowledge, a.dvic.e and in go6d faith. Flight Standards neverupdated the operation specifications to reflect subsequent 

### cl)anges.

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Regulation 135.241 makes reference to Flight Crewmembers requirements pertaining to 

### operations (emphasis added) under this part. Again MRHwas not doing operations as confirmed to 

### by the agency. Regulation 135.255 (before itwas removed along with 135.251) referred to the certificate 

### holder "aDd" 

### operator. The use ofthe conjunctive "and» indicates that the regulation only applies 

### ifa company is notjust

### a. certificate holder but also an operator, which 

### is one 

### performing operations and performing part 135 flights. In accordance with the Eversoncase which

### remains the 

### Litmus

### testfor these matters- this case law suggests that MRH should not be cited for violations occurringduring a period in time 

### when no operations actually occurred. SinceMRH was notin**operation~** did not have a pilot and did not fly any part 135 flights sinceJune 2007, before and duringthe relevantperiod ofthe violation, therefore, the citation should be dismissed.

3. IN THE MATTER OF: HELICOPTER 

### FLITE, INC. FAA ORDER 

### NO. 2011
..6:
In this case, section, 135.25(b) requires that a certificate holder have exclusive use of at least one aircraft that meets the requirements for at least
one kind ofoperation authorized in its operations specifications. This company also had an active Part 119 certificate. The FAA did prove 

### that Helicopter Flite did 

### not have exclusive use ofthe only aircraft listed on its operations specifications between February 12, 2008, 

### and September 15, 2008, however.it

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did no flights and conducted no operations. Helicopter Flite had the 

### same case law outcome as the Everson case. The HonorableJudge's final conclusion as stated: "HOWEVER, IT MAKES NO SENSE TO ENFORCE THIS REQUIREMENT BY IMPOSING A CIVIL PENALTY UNLESS THERE IS EVIDENCE THAT THE CERTIFICATE HOLDER CONTINUED TO OPERATE DURING THE TIME PERIOD THAT IT DID NOT HAVE :EXCLUSIVE USE OF AT LEAST ONE AIRCRAFT" {SIC}.
For the foregoing reasons, the Administrative Law Judge's decision was reversed, and no civil penaltywas 

### assessed. Itis the Complainants who conveniently missed the mark on these issues; the Respondenthas not stretched the holding ofthese cases, as these are logical and common sense**conclu~iotls** of law on these matters, based on the fact findings and case law precedent.
4. COMPLAINANTS ONLY HAVE AS A 

### HYPOTHETICAL REFERENCE· THE DSJOSEPH LETTER OF INTERPRETATION. The Complainants were unable to provide any case law precedent a:t trial
or to date otherwise that would support Complainants' position. The only reference given byComplainant was a conjecture interpretation ofa hypothetical case that did not,.go to trial concerning a company that had performed maintenance on an aircraft by a mechanic who was noton any drug

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abatement program. In addition the companydid not have its own drug program in place. The DeJoseph Interpretation also did not consider all the other cumulative and compelHng factors such as no operations, no pilot, name change, outdated op specs and compliance**statement~** no notification process. no actual maintenance was done,justa track and balance reading taken, not · requiring any mechanical 

### changes to the aircraft, no incidentor accident or any

### premise that placed the public at risk.
In contrast, these factors were different from MRH, suggesting that the Complainants case reference was not analogous. To reemphasize, Mr. Baker
was continuously and without interruption on multiple drug programs and MRH always had its own drug program for those not on a drug program. All these additional circumstances stretch even 

### further the Complainants hypothetical and speculative case scenario.

5. 

### THE REGULATIONS WERE NOT PROPERLY PROMULGATED AND NOTICE OF REGULATORY CHANGES NEVER PROVIDED.
Complainant 

### allege that the Regulations relied upon by**~omplaina.nt** 

### were "properly praraulgated by notice" (Complainants Rebuttal Briefpage 11, line 1), nonetheless that was not established and noc the case. No notice
was even given to Respondent either through the FSDOJ drug abatement officers, FAA inspectors, written or otherwise.

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In Respondents case the updated regulations were not referenced 

### or disclosed in the signed operationspecifications or compliance statements therein making Respondents compliance impossible since they were omitted and concealed. There was also no reference to 

### any methods ofcompliance of any kind. Respondent contends that it is unreasonable to hold an operator responsible for regulations, when those regulations were not clearly written, when the statutoryregulation amendment language required mandated retooling due to lack ofclarity and**~overnmcntal** ordered modifications for compliance and that the updated regulation was not incorporated into the dated compliance statement and operation specifications which is the legal binding authority for all operators. Itwas established during examination ofMs.**Lozada~** the central manager ofthe 

### Drug Abatement

### program, that the 

### partofthe Op Specs 

### section addressing Drug Abatement parameters A449 

### (Exhibit**A~2)** was signed offin January 2004 (Transcript Page 115, line 10), prior to the changes to Appendix I and 

### J that partiallyinitiated the proposed violation. There was ongoing reference by Ms. Lozada to a remote website, the Federal Registry and also that the DrugAbatement program had their own website (Tr. 122-20) which was unclearin her testimony and would be confu$ing to any operator. Ms. Lozada stated 

### itwas the Respondents responsibility to check (blindly and without reason), ifthere were questions. It was pursued at trial that ifyour FAA inspectors stated and confirmed an operatorwas in

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compliance consecutively for years and you were not notified otherwise, 

### why would there be a question or need to seek additional information (Tr. 124-20)? Ms. Lozada 

### stated that the 

### website contained these revised regu1ationst but no such reference 

### was ever 

### listed in t:he 

### Op Specs (Tr. 116-6) as a method to be compliant with the regulation. Ms. Lozada was questioned as to when this website started and when this dissemination of the regulations in this matterfirst began, she was not sure. Ms. Frankel an aviation safety specialist 

### in the office ofaudit and evaluation also did not know when the Drug Abatement website was established (Tr. 194-21). Respondent was able to establish that the Federal Website was first started in**2007~** in reference to Order 8900.1 (Exhibit R-1) (Tr. 122·11) and required about a year 

### to populate that website with data1 which brought the tirne.frame right up to the proposed violation ofMr. Baker performinga simple check ofthe rotor track and balance
on July 24, 2008, triggering this action. 

### It was established 

### that it 

### was the responsibility 

### ofFlight Standards Districts Office to update those Op Specs, not that ofthe operator. This was not**done~** therefore the Op Specs failedto address the new regulatory amendment, therein only contained the olderparameters which Respondent
was always compliant with (Tr. 139·8). There**w~s** never any notification afthe regulation change. It was established during examination ofMs. Frankel that she did not know what the term 

### methods ofcompliance even. meant and she could not define the term which is one ofthe main matters before the court (Tr. 273-2).



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Complainant misses the mark on how this is the core concept, that without a 

### solidified process and clearly

### written regulations and clear

### compliance procedures an 

### operatorcannot be 

### compliant with these regulations. 

### Respondent asked Ms. Lozada and Ms. 

### Frankelwhere 

### it was stated or written what 

### was needed 

### to become complaint to the new 

### regulation. they could not. Neither could state where itwaswritten, at whatinterval 

### to blindly 

### seek the regulations to 

### figure out if

### a regulation 

### had changed without any notification process in place 

### to determine this 

### (T.t. i45-.l4.). It was 

### left as a 

### random unknown method 

### and interval, 

### therein rendering it

### impossible for an operator to everbe 

### fully compliant, and the 

### :reason for the subsequent 

### litanyof changes 

### by the agency to 

### rectify those problems. Ms. 

### Frankel was asked what the grace period was to 

### become compliant 

### with the 2004 regulation change, was 

### itfive years? Her answer was that she
was 

### not aware ofa grace period 

### or a time interval 

### to becotne 

### complaint

### with those changes ('rr •. 279-8). 

### Complainant missed the mark on this statement, which illustrates the further lack ofcandor in terms ofdisclosure and procedurewith regard

### to this matter. Without a 

### Notification process in place. the agency expected the operator**t~** 

### review 

### a massive 

### database containing thousands ofpages oftext 

### on 

### the remote Federal 

### Registry websites that was Dot referenced in the Op 

### Specs, to 

### focus, find, comprehend, compare and then detennine 

### ifa :random change in
a singleisolated regulation had occurred, is an unreasonable·burden. When 

### Ms. Frankel

### was asked how to implement this 

### random exercise, 

### her only



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response was, itjust was the operator's 

### responsibility (Tr. 308-13). 

### Therefore, it is 

### impossible to 

### everbe 

### completely compliant at 

### any point in 

### rime, ifa 

### regulation 

### changed or

### update occurred, without notification, 

### training or 

### public education, as is 

### dearly evidenced by the 

### history ofthe FAA's own officers including Mr. Roots, the drug/alcohol abatement officer during his audit of MRH in 

### 2004 in 

### regard to tllese regulation_s. Ifa regulation is material and substantiates a penalty, then it 

### would also follow that 

### any "material" changes to an FAA 

### regulation would 

### warrant reasonable methods of

### communication-and notice for a material change. Due 

### to the voluminous depth 

### ofthe 

### Federal Register it would 

### be impossible for the 

### general public to monitorimmaterial changes. Therefore, penalizing the Respondent for an immaterial change that modified operation requirements is procedurally inconsistent 

### with the

### forthright notification procedure 

### that is in place for all other chapters in 

### the operation specifications, 

### which uses an effective, personalized, one on 

### one approach by known and established FAA inspectors in the sprit. ofcompliance and safety. Complainants attest that changes to 

### the regulations were promulgated 

### and amended by 

### notice in accordance theAdministrative Procedures Act or through the Federal Registry Publication ofFinal Rule. Ifthis is so. 

### then why
were FAA officers and all others 

### alSO tm,aware ofthe changes? (Emphasis supplied). Assuming arguendo, even 

### ifall the other

### fatal defects were not in place, this 

### scenario of

### no FAA 

### officials knowing of

### theregulation changes, only



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encoutaged the potential violation and entrapped the Respondent. It is unreasonable to hold 

### the Respondent to a 

### higher standard a11d a 

### double standard 

### than their own FM officials or 

### drug inspection officers 

### who frequently 

### inspected and communicated 

### with MRH, and who themselves did not know 

### or inform MRH ofthe regulation change 

### or send 

### some form 

### of notification. 14 c.F.R. part 121, App-endix I and J and 49 C.F.R. part 40 were not disclosed and no reasonable notification procedure was in place to info:rm ahy operator ofthiS Change, Contrazyto t!}C rsmtine protOCOl fgllowed by all Other 

### o_peration specification**chapters~** which included a regular

### notification procedure, 

### updated. ancl re..writteu operation specification revisions, 

### physically replaced pages and 

### subsequent formal ro..aignoft'

### and coaf'u:mation ofthe new pages thatthe operator is aware and agrees. It is therefore does not appear properor reasonable to hold MRH responsible for changes the.t 

### no one was aware**of~** not formally or otherwise notified of, 

### or signed offou. Regulations 

### S 135.251 ancll35.255 

### as written 

### in the compliance statement do not inherentlystate that MRH must directlytest each employee who pet"forms a safety sensitive function rather states empirically that

### any persoD 

### conducting 

### safety seueltlve functions mu.at be covered by 

### aa. FAA approved drug 

### and alcohol testing prograDl. ·These individuals 

### referred to, complied with drug and alcohol testing X"egulations under their full time employers.

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The 2 t"egulations that the agencywas vioJating the Respondent for-: §135.251 and §135.255, were so contradictory and problematic that the FAA 

### rule makers decided to 

### remove, reserve. relocate 

### and revise the defective language effectiveJuly 13, :2009" by 

### the FAA Rule makers perhaps unbeknownst by the complainants 

### (ExhibitA-12): 'F .A.A is 

### working on a major 

### .revision ofits 

### d.nlg and. alcohol testing regulations. Given the complexity of that revision and the time it will take to complete the ru.lemaldng process, the FAA 

### has concluded 

### that in the interim it 

### makes aenao to pull 

### tbe existing regulations 

### togethol' 

### in oQe 

### place'(SIC].
. Access to thatFAA website months ago stated Removed and R.o•enred, 

### nothing more (Exhibit R-8). The now working link shows the 

### re· codification of§l35.251 to §1:20.35 and§ 135.255 to§ 120.39> adding new: meaning to 

### the MovingTarget and Shifting nature ofthese regulations. Now the compliance with this 

### regulation even 

### appears dependent on 

### whetherornot a computer shifting and variably software hypertext website link 

### is operating correctly (emphasis supplied).

The Complainants took al'l aggressive course of 

### action to pursue at best a**theor~tical** violation for a regulation that was removed and rescinded in its entirety one year before the Complainants submitted their complaint (emphasis supplied). The reasons 

### why the agency had to rewrite the defective language and



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relocate the subject regulations 

### were discussed 

### on page 1840 of(ExhibitA-11, Tr. 

### 290-8) '1

### to clarify regulatory 

### language". In 2011. identifying 

### and confirming the problematic communication and notification system, the drug abatement program made further changes; The.drugprogram now enacted a new**com~tliance** procedure by m.ailing 10 garticipants requests for listed**~e,Psitc** interaction and**dat~s** for which 

### compliance_must be completed.



### 6. DID THE ROTOR TRACK AND BALANCE CHECK FALL UNDER TH8 GUIDELINE OF J\ SERIOUS SAFETY ISSUE OR UNWILLINGNESS TO 

### COMPLY WARRANTING THE PROPOSED VIOLATION FROM THE ONSET? The 

### Compliance and EnforcementTracking system (CETS) clearly states that "'Legal enforcementaction includes circumstances where serious 

### safety issues are I.Dvolved or thereis a patternof

### noncompliance that.indicates an inabilityorunwillingness to complywithregulatory requirements"? (http;//,.,...,.fy,gov[dG£UD}eDtLlbl1lry[meclia/Ordor/FULL%209120.lj\.l.J!d

### !lA rotor**tl"ac~** and balance checkwas started by the service station A/P at the LehighValley InternationalAirport. After settingup the checkingdevice, he
was unable to complete the check, Mr. Bakerworking on Air Methods Helicopter 

### happened to be on the sameramp was asked to 

### assist. Mr. Baker agreed and completed the task performed on July24, 2008, when he was only on the



### -20**~**



# --------------·-- 

# -·-- _... __.**Z~L98S~ZOZ X~~**  

### so:so ZLOZ/80/80 SZO/OZO**~**

### oa;o2/2012 10:SOPM FAX

primary Drug program for Air Methods Corporation and a second 

### drugprogram through the National Guard. He was not on MRH's specific program. 

### The logbook entryclearly discloses 

### that these rotor track and balance parameterswere checked and**~'all** 

### :m.easuremeut found 

### to be withla 

### limits, no acijuatmea.te required." (SIC) (ExhibitA-4). No changes or corrections were made to the 

### helicopter-, no 

### weights were added, no actual service was performed, itwaspurelya check or a readingand the system found to be well with.il1 specification. The 

### Compliance and 

### EnforcementTracking 

### system (CETS) 

### also cites 

### that a letter ofcorrection (LOC) orwarningnotice (WN) is 

### appropriate when there 

### are no serious safety issues orunwillingness to 

### comply with regulations. This was not 

### followed.

·ln addition to theinquiry as to the 

### serious safetyconcerns thatMs. Lozada (Tr. 157-12} had, she believed there were setious safetyconcemsjust on the basis that part 135 flights were flown. But when asked ifshe believed thatpart 135 flights were flown since that rotortrack and balance waschecked, she then changed her answer to "I djdn't say that". Itwasclearly established 

### from the flight log record that no part 135 operations were performed since a yeareven 

### before thatrotor track and 

### balance'checkwas pezformed and while the company was in moratorium.**Furthermore~** 

### that same 

### rotor track and balance check was l"epea.ted by Mr. Baker after he was placed on MRH'sown drug program. No flights were ever 

### flown in the interim; therefore there were never 

### any safety issues 

### ofany kind.

- 21-**ZPL5EBPZ~Z XV~**  

### so:so ZLOZ/E0/80 8ZO/l60 1tJ SIIIO +OS/OZ/2012 10:30PM FAX

The second condition to commence enforcement procedures is ifan operator was 

### unwUling to comply with the regulations. When Ms. Lozadawas 

### asked 

### ifMRH was unwilling to comply, 

### she stated "I 

### believe so'' (Tr. 158-17). 

### It
was commented to Ms. Lozada, howcould MRH have beenunwilling to comply when rhey did not know ofthe regulationchange and was notinfonned of

### the change. It was confirmed that 

### once MRH was aware, Mr. Bakerwas placed on theirexisting Drug program (Tr. 224-14). Ms. Frankel also confirmed that statement (Tr. 313-4). The specific agency language states where 

### serious safety issues involved. Since there was no flights letalone an incidentor accidc:Qt there was no event and/or opportunity for 

### any serious safety issues to be involved, therefote the Slgency pu.rsued 

### a. violation**b~sed** on a purely s.peculative_st.ar.ement since there
was no potential for a serous 

### safety issue 

### and no 

### flights were flown after the rotor track and balancewas checked, evenwithout makingany adjustments to the aircraft
.. The Enforcement Regulations 

### c:!.o not**le~ve** rogmor state that a violatio11**~hould** Qe**i~sued** based purel'lon speculgtion o:r: a. hygothetical situa,tion. Ms. Frankelnonetheless claimedJ there could have been a safety issue despite the aircraftwas not flown 135 from before the cited violation to the current (Tr. 310- 10). Mr. Kim Barnettewas asked ifduring ramp or maintenance inspections if the agency maintenance inspector had a responsibility to checl< outthe personnelworking on the aii"c:raft, his answer was thatwas 

### notwithin this purview (Tr.340-10).
-22
.. 

# ----------------------·---··-.**~tLSEBt~O~ XV~**  

### so:so**~LO~/E0/80 8~0/62:0** **~** 

### swo ..**~** .............. ""' _..,._ .... 08/02/2012 10:30PM FAX

7. 

### FINANCIAL PENALTY NOT

### WARRANTED Assuming**Arguendo~** that there was fair 

### cause to pursue the level of frivolous prosecution that has occurred in

### this case, a financial reward is not properorreasonable for an Limited Liability Corporation that has only generated losses.
On April30, 2011, Ms. Ponto confirmed receipt ofMRH's schedule C's 2007-09, Schedules L, M, and N as requested and as ordered by Judge Yoder. Mr. Raley (who took a-ver the case from Ms. Ponto) confirmed the financial losses, which demonstrated an inability to pay the proposed penalty and as disclosed (Exhibit 1).
On May 10, 2011, Mr. Riley then proposed the one and only settlement: offer by the agency 

### based on the validated 

### financial losses but

### without agreement to all terms. The tax records also confinned the name change and financial changes in early 2008. It was erred in the rebuttal briefby Complainants that MRH's financial statements were never subrnitted. At the end ofthe trial, Respondent requested a closing statement and testimony to submit**again~** to discuss the solvency ofMRH. Judge Goodwin instructed that furrher matters be addressed in a Post Trial Briefwhere the financials**wen~** again discussed, The evidence exists rhat the data was submitted (Exhibit 1).
MRH is a Limired Liability 

### Corporation wherein the owner of this LLC
-23-

82:0/860**~ 6PL~86P606**  XVj 

### so:so ZLOZ/80/8008/02/2012 10;31PM FAX**-~()024/0028**

has the liabilityprotection ofa corporation. A principle cannot be held personally liable for a debt. Therefore, all information clearly documenting company losses**h<:~.s** been provided. This information serves to further confirm the lack of**operation~** no pilot, and absence of authorization to perform flights, having no income before, during and after the**al~eged** 

### violation period.
It would be unreasonable to incur further financial hardship to Respondent's personal assets that have been unde:r going assault by a 7 year, still currentdivorce litigation. IV. CONCLUSION The**hypothetical~** far reaching and frivolous subjectcitation was aggressively pursued 

### despite the MR Helicopter's operation was shut down, non-operational, was operating at a loss. had changed names, had operation specifications 

### and compliance statements 

### that were invalid, incomplete being revised, updated, closed ies bank accounts and was unauthorized to 

### perform part 135 !lights also without a certified part 135pilot, 1 year before 1 during the cited 

### violation period and has not since then. 

### The proposed violation did not involve a serious safetyissue (checking a rotor track and balance without a change ofanykind), it did not involve 

### an incident or accident, the aircraft 

### was not even flown 135 and 

### the check was redone after Mr. Baker was on MRH's program, then DR Helicopters LLC.**There·wa~** no unwillingness once finally notified ofthe regulation change to place Mr. Bakeron the company's drug program.

- 24-

ZPL986PZOZ XV3 

### so:so ZLOZ/80/80 SZO/tiZO**~** 

### swo ..08/02/2012 10:81PM FAX

It was impossible to be compliant with the regulation because the regulation had changed without notification ofany kind, there were no methods ofcompliance listed in the outdated Op Specs, the regulations were obfuscated, changed. mdved and removed, reserved and re-codified. · Common sense and case lawprecedent does not support this violation tha.t has propagated and generated over a hundred pleadings to the docket.
over a 4 yearperiod and has consumed court and agency recourses many times
over the proposed unwarranted 

### and indiscriminate fine amount. The proposed hypothetical violation including anyjudgment is not warranted therefore all claims must be immediately QUASHED, STRICKEN and DISMISSED.

Reapecrfully Submitted,
Michael 

### B. Selig, MD. FACC.

8Z0/!1ZO ill SVlO + ZPL!188PZOZ**XV~** 

### so:so ZLOZ/80/8009/02/2012 10:31PM FAX

U.S. 'DEPARTMENT 0¥' TRANSPORTATION

FederalAviation Adm.ln:lstration Complainant v. 1\1 & R Helleopters, LLC. Respondent 

# ·- ..**~-----** Honorable J'ud.ge Richard Goodwin Docket! 2010-1:311

CE'RTIY.ICATE OF SERVICE I HERfCSY CERTIFY that 1have thisda.y served the foregoing entrie(s): RESPONDENT'S APPEAL BRIEF TO DISMISS COMPLAINT upon all parties ofrecoro in thisproceeding, in accordance with the requirements ofH.ulc 29 pursuant to 28 U. S. C. § 1746
. Service by E1nail and k"a.x 5 copies f'edcral Aviation Administration 800 independence Avcmte, SW Wilbur WrightAven"U.e-Suite 2Wl000 Washington, D.C. 20591 Att: AppeUate Docket ClerkRoom 954·Aand Hearh1g Docket Clerk, AOC-430 't<'AX 202 493 5142**Charle~S** Raley Enforcement Divi3ion

### IAOC-300 Office

## ofthe ChiefCounsel FAA 800 Indepet1dencc Avenue, SW Washington, DC :20591. FAX 202 267 5106 Charles.Rtl.lcy@fo;·U!.gov:> Pr(")tected

SZ0/82:0 1EJ**s~o** .. The**Hor~or1iLble** Richm·d C. Goodwin US Depal'tment of'l'ra.nsp(.)rtat.ion Office ofHearings, M-20, Room**~12·320** 1200New .Jersey**Avdl.U~.** S.K Walthington, DC 20590 FAX 202 366 7536-notWOT'king**l!acricie..mstthsw~dot.gov** irQ.Ielbowitz@dot.gov By:_ Electronically signedMBS Michael 0. Selig
.. \\

### ~ 2816 Ordicld

## l~oad**~~** .V ' Allentown, Pa. 18104 · 610 360 3953

- 

# -o-?)o(J-

\1\1::1 ZPL988PZOZ X\1::1 

### so:so ZLOZ/80/80