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 citation arose as a hypothetical, perhaps indiscrhninant 

violation of Part 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were never listed or signed off in the outdated operation specifications or 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 changes ever occurred, contrary to the procedures of all other 

·parts of the compliance statement and operational specifications. Moreover, 

there was no reference in the operation specifications to the location of the 

regulation or methods of compliance for regulations that were blindly changed. 

None of the local agency officials in con tact with Respondent and doing 

frequent inspections of the respondents operation were ever aware of the 

changes. 

The initiation of the subject citation was based solely on the assumption 

that A/P mechanic Edward Baker was not on any approved Dmg/ Alcohol 

abatement program when he performed a rotor tract and balance check~ 

(without making any changes) according to Inspector Statement lOP 9 record 

(Exhibit R·S). This was soon disproved when it was shown that Mr. Baker was 

always and continuously on a program by his primacy full time employer Air 

Methods Corporation and the National Guard. 

It was asserted that Mr. Baker was considered an employee of MR 

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 safety risk. 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, on July 21, 2009, was audited by 'ft~ Officers, 

Latonya Williams and Kimmy Poon for the initial scheduled inspection. On 

July 23, 2009, FM Officer, ·Latonya Williams returned alone for further 

·inspection of the MRH drug consortium records. Ms. Williams's behavior 

during that non-accompanied visit was offensive and unprofessional 

throughout the inspection, and a complaint was filed in that regard. Ms. 

William's took an excessive amount of time in doing her inspection, OV'er 3 

hours. Ms. Williams insisted on a spur of the moment letter 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 of a positive testing result in the over 30+ years of 

performing safety sensitive functions as a pilot and mechanic. 

Ms. Williams also disclosed that there was 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 of this policy change and even more unsettling~ the FAA ma1ntenance 

inspector Gerry Henninger for MRH. also was not aware and was therefore 

unable to inform MRH of this change during the 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 of the management personnel including the 

Primary Inspection Officer, Frank Alotta or the Allentown FSDO were informed 

of the regulation change during that period as well. 

Of particular 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 abatement personnel were informed of their 

own in house regulation change. Mr. Roots did not mention or provide 

instruction or training regarding referencing regulations that were not readily 

apparent, updated or written in the compliance statement or operation 

specificationsJ nor recommended compliance procedures or of a 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 since June 2007 (Exhibit R-6), 

due to human factors and extenuating circumstances impacting the single pilot 

operator (high conflict, protracted divorce, liability issues, etc.) either was 

unavailable to take his flight ·exam or the inspector was unavailable to perform 

a flight exam (medical leave). MRH had since also ceased operating under the 

name (Exhibit R-7) and the certificate number thereby rendering 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. A year after the audit> on July 23, 2010, 

Respondent was served with a Notice of Proposed 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 of fact, 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 

of the 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. Baker was 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. On June 18, 2012, the decision was rendered to sanction 

Respondent for $4400, despite the submitted evidence that the Limited 

Liability Company was non operational, imposed no risk to the public, operated 

at a 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 SPECIFICATIONS AUTHORIZING PART 13S OPERATIONS. 

This statement by the Complainants is erred. This hypothetical and tar 

reaching subject citation 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 off drug abatement regulations from January 2004, before the 

drug/ alcohol regulations had changed and was never notified of drug 

abatement regulation change 

The Complainants primary stance ha.s been that just having a listed Part 

119 certificate entitles the agency to violate an operator irrespective of any other 

conditions. common sense, extenuating or otherwise. The only reference cited by 

Complainants to suggest that MRH was operational was a website listing only 

that MRH had a certificate number. For instance, the operational specifications 

were to be updated and the Flight Standards District Office (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 of the 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 

Another reason why the operator was unauthori~ed to conduct operations. 

The Complainant continuously acknowledged that MRH's op specs were 

not updated to reflect the new drug abatement changes by the FSDO~ since the 

op specs were signed off before the regulations had changed and went into 

effect. 

Complainants erred by asserting that exposure and liability for a violation 

is warranted based solely on J20Ssessing operating sgecifications even if 'l.lnder the 

wrong name and having not performed any part 135 flights. How could the 

operation be active if it was unable to carry out operations because there was no ) 

qualified pilot or had undergone a name change? Respondent also exercised 

sound judgment in the best interests and safety of the public 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 of Operations and Maintenance 

Coordinator for which he bears all liabilities. Why should the Respondent be 

punished for exercising good judgment? 

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In order to be authorized to conduct operations several conditions must be 

met. First, the operational specifications and compliance sta.ternents required 

updating) to reflect the new name and current with 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 

making the operation specifications invalid (Exhibit R~ 7) 

To conduct part 135 operations, the pilot must comply with the 

requirements in the regulations. have the experience levet undergo yearly 

recurrency training as well as undergo a yearly oral and flight examination by an 

FAA examiner.· None of this occurred or was in place; therefore it was impossible 

for MRH to be authorized to conduct part 135 operations, since June of 2007. 

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 of a state of confusion 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 ORDER NO. 2004-5. 

Judge Yoder made reference to the current case law regarding violations 

to operators not engaged in operations- The bottom line conclusion of this 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) 

Complainants presented arguments that simply do not apply. 

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Complainants .contemplated that not performing operations prior to commencing 

a drug/ alcohol program is different than not conducting operations during a 

period of shutdown when the agency sought a violation, when the operation did 

have an active drug program. In the Everson case, a program was mandated to 

be started 60 days after approval of the program prior to commencing operations 

which was not done. On inspection of his operations specifications no drug 

program was in place. The case was still dismissed. 

The co.rnmonalicy between the Everson case and MRH1s case is that no 

flights or operations were conducted during the relevant period. Therefore, no 

possible risk or harm presented to the public. 

The primary premise that initiated the violation was that Mr. Baker was 

not on any program. MRH did have its own drug program and ·implemented that 

program for those not Qn,MY approved program and in accordance to the 

operation specifications sign off date of January 2004 prior to the regulation 

change and the maintenance inspector's knowledge, a.dvic.e and in go6d faith. 

Flight Standards never updated 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 

MRH was not doing operations as confirmed to by the agency. 

Regulation 135.255 (before it was removed along with 135.251) referred 

to the certificate holder "aDd" operator. The use of the conjunctive "and» 

indicates that the regulation only applies if a company is not just a. certificate 

holder but also an operator, which is one performing operations and performing 

part 135 flights. 

In accordance with the Everson case which remains the Litmus test for 

these matters- this case law suggests that MRH should not be cited for 

violations occurring during a period in time when no operations actually 

occurred. Since MRH was not in operation~ did not have a pilot and did not fly 

any part 135 flights since June 2007, before and during the relevant period of the 

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 of operation 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 of the 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 Honorable Judge'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 penalty was assessed. It is the Complainants who 

conveniently missed the mark on these issues; the Respondent has not stretched 

the holding of these 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 by Complainant was a conjecture interpretation of a 

hypothetical case that did not ,.go to trial concerning a company that had 

performed maintenance on an aircraft by a mechanic who was not on any drug 

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abatement program. In addition the company did 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, just a track and balance reading taken, not · 

requiring any mechanical changes to the aircraft, no incident or 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 Brief page 

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 operation specifications or compliance statements 

therein making Respondents compliance impossible since they were omitted 

and concealed. There was also no reference to any methods of compliance 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 statutory regulation amendment language required mandated 

retooling due to lack of clarity 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. 

It was established during examination of Ms. Lozada~ the central 

manager of the Drug Abatement program, that the part of the Op Specs section 

addressing Drug Abatement parameters A449 (Exhibit A~2) was signed off in 

January 2004 (Transcript Page 115, line 10), prior to the changes to Appendix I 

and J that partially initiated the proposed violation. There was ongoing 

reference by Ms. Lozada to a remote website, the Federal Registry and also that 

the Drug Abatement program had their own website (Tr. 122-20) which was 

unclear in her testimony and would be confu$ing to any operator. 

Ms. Lozada stated it was the Respondents responsibility to check 

(blindly and without reason), if there were questions. It was pursued at trial 

that if your FAA inspectors stated and confirmed an operator was 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 

matter first began, she was not sure. Ms. Frankel an aviation safety specialist 

in the office of audit 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 of Mr. Baker performing a simple check of the rotor track and balance 

on July 24, 2008, triggering this action. 

It was established that it was the responsibility of Flight Standards 

Districts Office to update those Op Specs, not that of the operator. This was 

not done~ therefore the Op Specs failed to address the new regulatory 

amendment, therein only contained the older parameters which Respondent 

was always compliant with (Tr. 139·8). There w~s never any notification af the 

regulation change. 

It was established during examination of Ms. Frankel that she did not 

know what the term methods of compliance even. meant and she could not 

define the term which is one of the 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 operator cannot be compliant with these regulations. 

Respondent asked Ms. Lozada and Ms. Frankel where it was stated or 

written what was needed to become complaint to the new regulation. they 

could not. Neither could state where it was written, at what interval 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 ever be fully compliant, and the :reason for the subsequent litany of 

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 it five years? Her answer was that she 

was not aware of a 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 of candor in terms of disclosure and 

procedure with regard to this matter. 

Without a Notification process in place. the agency expected the 

operator t~ review a massive database containing thousands of pages of text on 

the remote Federal Registry websites that was Dot referenced in the Op Specs, 

to focus, find, comprehend, compare and then detennine if a :random change in 

a single isolated 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, it just was the operator's responsibility (Tr. 308-13). Therefore, 

it is impossible to ever be completely compliant at any point in rime, if a 

regulation changed or update occurred, without notification, training or public 

education, as is dearly evidenced by the history of the 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. 

If a 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 of the Federal Register it would be impossible for the 

general public to monitor immaterial 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. of compliance and safety. 

Complainants attest that changes to the regulations were promulgated 

and amended by notice in accordance the Administrative Procedures Act or 

through the Federal Registry Publication of Final Rule. If this is so. then why 

were FAA officers and all others alSO tm,aware of the changes? (Emphasis 

supplied). 

Assuming arguendo, even if all the other fatal defects were not in place, 

this scenario of no FAA officials knowing of the regulation 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 of the 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 of thiS Change, Contrazy to 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 of the new pages that the operator is aware and agrees. It is 

therefore does not appear proper or reasonable to hold MRH responsible for 

changes the.t no one was aware of~ not formally or otherwise notified of, or 

signed off ou. 

Regulations S 135.251 ancll35.255 as written in the compliance 

statement do not inherently state that MRH must directly test 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 agency was 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 effective July 13, :2009" by the FAA Rule makers perhaps 

unbeknownst by the complainants (Exhibit A-12): 

'F .A.A is working on a major .revision of its 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 that FAA 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 Moving Target and Shifting nature of these regulations. Now 

the compliance with this regulation even appears dependent on whether or not 

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 (Exhibit A-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.drug program 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 Enforcement Tracking system (CETS) clearly states 

that "'Legal enforcement action includes circumstances where serious safety 

issues are I.Dvolved or there is a pattern of noncompliance that .indicates an 

inability or unwillingness to comply with regulatory requirements"? 

(http;//,.,...,.fy,gov[dG£UD}eDtLlbl1lry[meclia/Ordor/FULL%209120.lj\.l.J!d 

!lA rotor tl"ac~ and balance check was started by the service station A/P at 

the Lehigh Valley International Airport. After setting up the checking device, he 

was unable to complete the check, Mr. Baker working on Air Methods Helicopter 

happened to be on the same ramp was asked to assist. Mr. Baker agreed and 

completed the task performed on July 24, 2008, when he was only on the 

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primary Drug program for Air Methods Corporation and a second drug program 

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

The logbook entry clearly discloses that these rotor track and balance 

parameters were checked and ~'all :m.easuremeut found to be withla limits, no 

acijuatmea.te required." (SIC) (Exhibit A-4). No changes or corrections were 

made to the helicopter-, no weights were added, no actual service was performed, 

it was purely a check or a reading and the system found to be well with.il1 

specification. 

The Compliance and Enforcement Tracking system (CETS) also cites that a 

letter of correction (LOC) or warning notice (WN) is appropriate when there are no 

serious safety issues or unwillingness to comply with regulations. This was not 

followed. 

· ln addition to the inquiry as to the serious safety concerns that Ms. Lozada 

(Tr. 157-12} had, she believed there were setious safety concemsjust on the 

basis that part 135 flights were flown. But when asked if she believed that part 

135 flights were flown since that rotor track and balance was checked, she then 

changed her answer to "I djdn't say that". It was clearly established from the 

flight log record that no part 135 operations were performed since a year even 

before that rotor track and balance' check was 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 of any kind. 

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The second condition to commence enforcement procedures is if an 

operator was unwUling to comply with the regulations. When Ms. Lozada was 

asked if MRH was unwilling to comply, she stated "I believe so'' (Tr. 158-17). It 

was commented to Ms. Lozada, how could MRH have been unwilling to comply 

when rhey did not know of the regulation change and was not infonned of the 

change. It was confirmed that once MRH was aware, Mr. Baker was placed on 

their existing 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 let alone an incident or 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 balance was checked, even without making any adjustments to the 

aircraft .. The Enforcement Regulations c:!.o not le~ve rogm or state that a violatio11 

~hould Qe i~sued based purel'l on speculgtion o:r: a. hygothetical situa,tion. Ms. 

Frankel nonetheless claimedJ there could have been a safety issue despite the 

aircraft was not flown 135 from before the cited violation to the current (Tr. 310-

10). 

Mr. Kim Barnette was asked if during ramp or maintenance inspections if 

the agency maintenance inspector had a responsibility to checl< out the 

personnel working on the aii"c:raft, his answer was that was not within this 

purview (Tr.340-10). 

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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 

proper or reasonable for an Limited Liability Corporation that has only 

generated losses. 

On April30, 2011, Ms. Ponto confirmed receipt of MRH'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 brief by 

Complainants that MRH's financial statements were never subrnitted. At the 

end of the trial, Respondent requested a closing statement and testimony to 

submit again~ to discuss the solvency of MRH. Judge Goodwin instructed that 

furrher matters be addressed in a Post Trial Brief where 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 

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-~()024/0028 

has the liability protection of a 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 subject citation 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 135 pilot, 1 year before 1 during the 

cited violation period and has not since then. 

The proposed violation did not involve a serious safety issue (checking a 

rotor track and balance without a change of any kind), 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 of the regulation change to 

place Mr. Baker on the company's drug program. 

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It was impossible to be compliant with the regulation because the 

regulation had changed without notification of any kind, there were no 

methods of compliance listed in the outdated Op Specs, the regulations were 

obfuscated, changed. mdved and removed, reserved and re-codified. · 

Common sense and case law precedent does not support this violation 

tha.t has propagated and generated over a hundred pleadings to the docket. 

over a 4 year period and has consumed court and agency recourses many times 

over the proposed unwarranted and indiscriminate fine amount. 

The proposed hypothetical violation including any judgment 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/80/80 
09/02/2012 10:31PM FAX 

U.S. 'DEPARTMENT 0¥' TRANSPORTATION 

Federal Aviation 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 1 have this da.y served the foregoing entrie(s): 

RESPONDENT'S APPEAL BRIEF TO DISMISS COMPLAINT 

upon all parties of recoro in this proceeding, in accordance with the requirements of H.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 Wright Aven"U.e-Suite 2Wl000 

Washington, D.C. 20591 

Att: AppeUate Docket Clerk Room 954·A and 

Hearh1g Docket Clerk, AOC-430 

't<'AX 202 493 5142 

Charle~S Raley 

Enforcement Divi3ion I AOC-300 

Office of the Chief Counsel 

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 of Hearings, M-20, Room ~12·320 

1200 New .Jersey Avdl.U~. S.K 

Walthington, DC 20590 

FAX 202 366 7536-not WOT'king 

l!acricie..mstthsw~dot.gov 

irQ.Ielbowitz@dot.gov 

By:_ Electronically signed MBS 

Michael 0. Selig .. \\ ~ 2816 Ordicld l~oad ~~ .V ' 

Allentown, Pa. 18104 · 

610 360 3953 -

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