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John Scott Hoff 

(IMA/NE/CA/WI/MI/CD/MN/NY) 

AlexHeiTOiL(lL) 

LAW OFFICES 

HOFF & HERRAN 

A P»iTn«nliip Including Pcofessiaim] Conioraiions 

135 South LaSalle Street, Suite 3300 

Chicago, Illinois 60603-4134 

761:312/346-8111 

Fax; 312/853-3924 

WEB Site; www.aviationattomey.com 

Jeffrey F, Clement (IL) 

Timothy J, O'CMinell (IL) 

Glenn Collins« Of Counsel (IL) 

Mareh26»2010 

VIA FACSIMILE AND U.S. MAIL 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, SW., Room 924A 

Washington, DC 20591 

Attention: Hearing Docket Clerk 

— 1 

c::.5 

RE: FAA v. MIDWEST HELICOPTER AIRWAYS. INC. 

Case No.: 

Case No. 2: 

Our File #: 

CP09GL0007 

CP09GL009 

09919 

Dear Clerk: 

Please find enclosed an original and one (1) copy of the Respondent^ti Reply to 

Complainant's Response to Respondent's Motion for Ruling as to Testimony of 

Gerry F. Ventrella and Second Motion for Continuance of Hearing the two abovecaptioned matters. Kindly file this document -with the Court. 

Thank you very mtich for your cooperation in this matter. If you have any 

questions or concerns, please feel &ee to give me a call. 

Very truly yours, 

HOFF & HERRAN 

Ma^ ^ 

Jeff Clement 

JFC/jas 

cc: Kate Barber, Esq. (one copy via facsimile and U.S. mail) 

The Honorable Richard C. Goodwin (one copy via facsimile and U.S. mail) 
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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO. CP09GL007 

(Civil Penalty Action) 

DMS No. FAA-2009-084<5 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO, CP09GL009 

(Civil Penalty Action) 

DMS No. FAA-2009-0973 

RESPONDENT'S REPLY TO COMPLAINANT'S RESPONSE TO RESPONDENT'S 

MOTION FOR RTJLING AS TO TESTIMONY OF GERRY F. VENTRELLA AND 

SECOND MOTION FOR CONTINUANCE OF HEARING 

Respondent, MIDWEST HELICOPTER AIRWAYS, INC., by and through counsel, and 

as its Reply in Support of its Motion for Ruling as to permitting the Testimony of expert witness 

Ocny F. Ventrella and Second Motion for Continuance of Hearing, respectfully states as 

follows: 

1. The FAA'S interpretation of 49 C.F.R. § 9.7(b) does not comport with substantial 

due process nor the legislature's intent It will be the task of the Administrative Law Judge to 

determine and inteiprct the inicni of the legislature and Administrative branches in the 
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enactment and initiation of the subject regulation. Simply because the witness was a "former" 

FAA employee should not automatically or E S sg disqualify their testimony, especially without 

a clear showing that the proffered testimony factually "arises out of the witness's former duties 

with the FAA. In point in fiact, even own Respondent's coimsel, John S. Iloflf, Esq, was himself 

a "former employee" of the FAA (Headquarters, Office of the Chief Counsel, 1975-1976). 

2. There is no doubt that 49 C.F.R. § 9.7(b) is ambiguous as to what exactly is meant 

by "arising out of the employee's official duties." However, the right of the Respondent to call 

wimesses on its behalf is a vital and very basic due process right. It is the task of the Judiciary 

to construe the regulation in conformity with "substantial due process" and inherent feimess. 

Therefore, any ambiguity must be resolved against barring an important witocss from testifying 

as a result of a tenuous, rote or hyper-technical application of an ambiguous regulation. The 

regulation should not be used to disqualify jtist any former FAA employee from offering expert 

testimony that might tangentially touch on their prior experience or inherently deal with 

something, however tenuous, diat they may have learned during their tenure as an employee. 

.^. In the present matter, Mr. Ventrella's former duties with the FAA simply lack any 

specific factual nexus to these specific proceedings. While he may have been a former 

employee of the DuPage Flight Standards District OfBce (FDSO) over 20 years ago, thie subject 

proceedings involve the propriety of the actions of the Milwaukee FSDO, not the DuPage 

FSDO. The Milwaukee FSDO and its inspector, not the DuPage FDSO, made the subject 

Complaint. Also, during his brief period of employment with the FAA, Mr. Ventrella duties did 

not cover the jurisdiction where either of the two subject heavy lift operations occurred. 

4. Furthermore, Mr. Ventrella is not being called as a witness to opine as to FAA 

policy over 20 years ago. The pohcies of dxe FAA over 20 years ago wUl not resolve the present 
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dispute. In foot, the FAA*s Handbook, 8900.1, Volume 3, Ch. 51, the interpretation of which is 

central in this matter, was published in 2007, 18 years after Mr. Ventrella's employment ended 

with the FAA, The FARs are republished anew annually and have evolved over the ensuring 20 

years, as well. Rather, Mr. Ventrella is being called as a result of his years of hands-on 

experience as a Part 133 "heavy lift pilot," of which there are veiy few. Even the FAA had to 

resort to the use of Jolui Judge from Seattle, WA, as such an individual could not be found in 

this geographic area. Mr. VenireUa and his combination of military and civilian "heavy lift" 

rotor aircraft experience is unique. 

5. While there noay be no express provision in tiie regulation that allows the 

"passage of time" to negate or attenuate the application of the regulation, it must certainly be 

iinpliecl that the longer a witness has been out of FAA employment, the less likely it is that their 

testimony "arises out of their official duties." In Illinois, even evidence of a felony conviction 

of over ten years is inadmissible because of the remoteness and attenuation. 

6. Finally, it would be inherently unfair at this stage in the proceedings to bar 

Respondent ftt>m calling Mr. Ventrella, especially where the FAA cannot sliow any prejudice, 

nor have they offered any in iheir ostensible objection. The FAA has known that Respondent 

would call Mr. Ventrella as a wlmess since November 20, 2009 when he was expressly 

disclosed as an expwrt wimess. However, the FAA has only now, approximately one month 

before the scheduled Hearings, got around to asserting their objections. Due to waiver, the FAA 

has failed to timely assert its objection, making their objection moot. The field of heavy lift 

experts is extremely limited, especially if Respondent is restricted to individuals without any 

former nexus with the FAA, Thus, it would be very difficult and prejudicial for Respondent to 

have to locate a replacement expert within a month of the scheduled Hearings. 
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7, Alternatively, the Respondent does not believe that it was the legislative intent to 

"forever bar" any and all former employees from offering their insight and expertise ECT se 

merely because they once were an employee of the FAA - especially where there was no 

personal involvement with the facts and matter at hand and in issue for the Judge to decide. The 

Judge can capably weigh their credibility and any bias accordingly. 

WHEREFORE, Respondent respectfully requests the Administrative Law Judge enter an 

Order (I) holding that Gerry Ventrella may proffer opinion testimony on behalf of the 

Respondent at the Hearings in these maners, and <2) continuing the Hearings in these matters to 

a date after July, 2010, and for any furfiier relief as the Judge deems just and proper. 

Dated: March 26,2010 

John S. Hoff 

Jeff Clement 

Hoff & Henran 

135 South LaSalle St., Suite 3300 

Chicago, IL 60603 

(312)346-8111 

(312) 853-3924 (FAX) 

Respectfiilly submitted, 

HOFF & HERRAN 

Jeff Clement 
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CERTIFICATE OF SERVICE 

I certify that on March 26, 2010, a copy of the foregoing was served upon the following 

via facsimile and by depositing said document in an envelope, sealed, first-class postage fully 

prepaid and placed in the U.S. mail located at 135 S. LaSalle St., Chicago, Illinois 60603: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Kate Barber, Complainant's Counsel 

Great Lakes Region, AGL-7B 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

THEL; 847-294-7713 

FAX: 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

OflSce of Hearings, M-20 

1200 New Jersey Avenue, S-E. 

East Building Ground Floor 

RoomE12-320 

Washington, DC 20590 

TEL: 202-366-213 9 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

U^cp..^ 

Jefl: Clement