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^:'^'^ARTMENT OF 

::^:t ASPORTATION 

Before the U.S. Department of Transportation i J OPFRATlOMo 

Federal Aviation Administration 

) 

In ihe matter of ) 

) Docket No. TBA 

M & R HELICOPTERS ) FAA Case No. 2009SO950434 

) 

) 

) 

COMPLAINANT'S RESPONSE TO M&R HEIJCOPTERS' 

MOTION TO QUASH, STRTKK. OR DISMISS COMPLAINT 

and MOnON TO STRIKE ALLEGATION 

Complainant files its response to Respondent M&R Helicopters' 

("Respondent") Motion to Quash, Strike, or Dismiss Complaint ("Motion to Dismiss") 

and Respondent's Motion to Strike Allegation - Mr. Baker Was Not on a Drug/Alcohol 

Program (Motion to Strike Allegation). Both motions were served on November 30, 

2010. In the interest of judicial efficiency, this document responds to both motions, 

which are based on substantially similar arguments. 

Background 

Complainant filed its complaint in the above-captioned matter with the Hearing 

Docket on November 17, 2010. On November 27, 2010, Respondent filed "Preliminary 

Objections," which appear to be its answer to the complaint. On November 30, 2010, 

Respondent filed a Motion to Quash, Strike, or Dismiss Complaint and a Motion to Strike 

Allegation - Mr. Baker Was Not on a Drug/Alcohol Program. 

Argument 

In its Motion to Strike Allegation, Respondent claims the allegation that "Mr. 

Baker was not on a Drug/Alcohol monitoring program" should be stricken and that the 
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"case must be Quashed and STRICKEN due to insulliciency." Respondent's Motion to 

Strike Allegation at 3. Similarly, in its Motion to Dismiss, Respondent argues that "the 

allegations made in the complaint are not proper or reasonable and thereby the complaint 

should be Quashed, Stricken and Dismissed [sic]." Respondent's Motion to Dismiss at 1. 

The arguments raised by Respondent in its Motion to Dismiss and Motion to Strike 

Allegation fail to provide a basis tor the dismissal of the complaint' or grounds to strike 

the allegations contained in the complaint.^ 

In .support of its motion, Respondent argues that it was never made aware of a 

change to the l* AA's antidrug and alcohol program regulations in 2004, nor was it kept 

abreast of all changes to FAA regulations through direct notification from FAA 

personnel. Motion to Dismiss at pages 2-3. Respondent suggests this is a basis for a 

dismissal of the legal enforcement action against it. Respondent ignores that it is a 

certificate holder under part 119 with operations specifications authorizing it to operate 

under part 135. As such, it is required to comply with all FAA regulatory requirements 

applicable to it, uicluding those requiring it to implement an antidrug and alcohol misuse 

prevention program. Specifically, paragraph A449(a) of the Operation Specifications for 

Respondent entitled ""Antidrug and Alcohol Misuse Prevention Program" states that 

the certificate holder who operates under Title 14 Code of Federal Regulations 

(CF.R) Pan 135 certifies that it will comply with the requirements of 14 C.F.R. 

Pitri 121 Appendices I and J and 49 CF.R. Part 40 for its antidrug and alcohol 

misuse prevention program. 

' On December 10,2010, the complaint was amended to remove two dates of performance and reduce the 

proposed civil penally to S4,400. 

^ While the arguments rai.?ed by Respondent appear lo be more appropriaiciy characterized as affirmative 

defenses, which should be raised in accordance with 14 C.F.R.§ 13.209(d) and must be proven by 

Respondent at hearing, the agency is addrcs.sing them here to the extern ihey may be considered as 

arguments for Lhe dismissal of the case. 
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See Operation Specifications attached as Exhibit 6 to Respondent's Brief in Support of 

Motion to Dismiss. Dr. Selig, as the owner and operator of Respondent, placed his 

signature on this document affirming his acceptance and receipt of the operation 

specifications.'* 

While Respondent argues that "14 C.F.R. Part 121, Appendix I and J and 49 

C.F.R. Part 40 are not disclosed and no notification procedure is in place" to inform 

regulated entities of changes, in fact the regulations are publicly available and all changes 

are published in the Federal Register.'* (See Respondent's Brief in Support of Motion to 

Dismiss at 14. The drug and alcohol testing regulations which required that all 

employees performing safety-sensitive functions be subject to random selection for drug 

and alcohol testing were in existence at the lime Respondent obtained its operation 

specifications.^ Respondent refers to a "policy change" in 2004 which it claims it was 

not notified of. See Respondent's Motion to Dismiss at 2,-3 Respondent's Brief in 

Support of Motion to Dismiss at 4, 6. Respondent appears to be referring to a 

clarification of the definition of employer tlirough notice and comment rulemaking which 

occurred from 2002 to 2004. On February 28, 2002, tlie FAA published the Notice of 

Proposed Rulemaking for this clarification. 67 FR 9365. The Final Rule was published 

^ Akhough M&R Omitted the signature page of its operaiion specifications, the agency will produce that at 

trial if necessary. 

'' Rciipondeni incredibly appears to be arguing that ii has no obligation to comply with safety regulations 

applicable to it unless it is given explicit notice of the regulations beyond that provided through the 

Administrative Procedures Act (APA). 

^ The FAA adopted rules in the 1980s to require drug testing of persons performing safety functions in the 

commercial aviation industry and, in the 1990s, required alcohol testing as well. 69 FR 1839. On 

November 14, 1988, the FAA published a final lule entitled Antidrug Program tor Persomiel Engaged in 

Specified Aviation Activities (5.3 FR 47024), which required specified aviation employers and operators lo 

initiate antidnig programs for personnel pcrfonring satety-sensitive functions. On February 15, 1994, the 

FAA published a final rule which required employers to also test for alcohol under an Alcohol Misuse 

Prevention Program for Personnel Engaged in Specified Aviation Activities (59 FR380). 
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on .lanuary 12, 2004, which became effective on February 11, 2004. 69 FR 1839. 

ITirough this rulemaking, the FAA changed 

the meaning of Employer to clarify that [sic! employer may use a contract 

employee to perform a safety-sensitive function if the contract employee is 

included in the: (1) employers FAA-mandated antidrug program; or (2) 

Contractor's FAA-mandated antidrug program while performing a safetysensitive function on behalf of that contractor (i.e., within the .scope of 

employment with that contractor). 

67 FR ] 841, see also Id. at 1842-43. The 2004 change to the FAA regulations was 

properly promulgated under the APA and those affected by the change, including 

Respondent, were provided proper legal notice. Accordingly, Respondent's argument 

lacks merit. 

Further, the definition of "employer" implemented by the 2004 change to the 

FAA regulations establishes that Mr. Baker was not covered under an approved drug and 

alcohol program for the work he performed for Respondent. And, as a result, this 

allegation should not be stricken from the complaint. Respondent, as an employer under 

the regulations, contracted with Mr. Baker to perform a safety-sensitive function. 

Evidence adduced at hearing will show that Respondent paid Mr. Baker directly for his 

services. Respondent could only use Mr. Baker to perform a safety-sensitive fiinction if 

he was included in M & R's antidrug and alcohol misuse prevention program or if 

Mr. Baker, as an independent contractor, had his own program, fhc complaint alleges 

that Mr. Baker was not included in M & R's program and that, even if he were treated as 

an independent contractor, he did not have and was not included in an FAA antidrug and 
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alcohol testing program of his own at the time he performed safety-sensitive functions for 

Respondent.^ 

Even if Mr. Baker was covered by an other employer's drug te.sting program, in 

particular Air Methods, that does not satisfy tlie regulatory requirements placed on 

Respondent, because the work performed by Mr. Baker was not within the scope olhis 

employment with those employers. The statement provided by Air Methods specifically 

states that Mr. Baker was '''not authorized or contracted by Air Methods to do any outside 

maintenance for M & R Helicopters or any other operator," Respondent's Motion to 

Strike Allegation, Exhibit 2, Re.spondent's Motion to Dismiss, Exhibit 4, Respondent's 

Brief in Support of Motion to Dismiss, Exhibit 3. (emphasis added). Therefore, it is 

immaterial whether Mr. Baker was included in Air Methods' drug and alcohol testing 

program. 

Because Mr. Baker performed safety-sensitive functions directly by contract for 

Respondent, Respondent was required under FAA regulations to ensure that Mr. Baker 

was covered under its drug and alcohol testing program or to cnsitre Mr. Baker was 

covered under his own program, not that of Air Methods or any other employer. That 

Mr. Baker was covered under Air Methods drug and alcohol testing program would not 

bring Respondent in compliance with the regulations, because the work perfomied by 

Mr. Baker for Respondent was not withui the scope of his employment with Air Methods. 

Accordingly, the argument that Mr. Baker was covered under Air Methods program fails 

to form a basis upon which the complaint in this matter should be dismissed or for 

striking any allegations regarding Mr. Baker from the complaint. 

* While Respondent alleges that the FAA failed to conduct its inspection appropriately and failed to 

confirm and/or verify facts in its investigation, FAA inspectors appropriately considered and provided all 

evidence obtained in the course of their inspection. 
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Respondent argues that it has been denied information it has requested or is 

entitled to. While this is not a proper basis for the dismissal of a complaint, it is also 

inaccurate. Respondent has not served discovery requesting any documents in this case. 

Agency counsel provided a copy of the FAA's enforcement investigative report (ElR) in 

this case to Respondent, following a discussion between the parties during the informal 

conference held prior to the request for hearing. The copy of the EIR provided to 

Re.spondent contained all rcleasable documents upon which the FAA relied in preparing 

and initiating this enforcement action. Any documents obtained after the initiation of the 

civil penalty action on July 23, 2010, would not be included in the EIR and, therefore, 

have not yet been provided to Respondent.^ The portions of the EIR that were not 

released to Respondent were withheld an privileged, because they contain the 

investigator's analysis, recommendations, and opinions and constitute deliberative, predecisional materials, rendered by agency staff members in the course of reaching a final 

determination or position on a particular matter under agency consideration. See. e.g., 

Jordan v. Departmeni of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc). The 

agency clearly infomted Respondent of the basis upon which it was withholding or 

redacting doctunents when it provided the EIR. -Although Respondent argues thai the 

agency failed to provide "the full regulations referenced and adoption dates," all 

regulations and cases relied upon by the agency are publicly available. As the holder of 

an operating certificate, Respondent should already have copies of the regulations relied 

on in this ca.se. See e.g., Respondent's Motion to Dismiss at 7. 

While these documents may be requested through discovery, Respondent as noted above has not filed a 

discovery request which would prompt the agency to provide documents obtained after the DIR was 

produced. 
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Respondent also argues that it has been denied transcripts of a "hearing" held by 

the agency, which it claims was recorded and transcribed. See Respondent's Motion lo 

Dismiss at 6 and Respondent's Brief Supporting the Motion to Dismiss at 7. No hearing 

has been held, however, and no such transcripts exist. On October 1, 2010, Respondent 

participated in an informal conference to discuss the matter with the agency attorney, as 

provided for under 14 C.F.R. 13.16(t)(2)(iii), This informal conference occurred by 

telephone. Agency counsel explained to Dr. Selig, owner of M & R Helicopters, that the 

informal conference was not a hearing but rather an informal discussion with the agency 

attorney that afforded him an opportunity to submit relevant information in response to 

the proposed civil penalty action and to discuss the alleged violations and possibly 

resolve the matter." When Dr. Selig asked whether the conversation during the informal 

conference was being recorded, the agency attorney stated "no." In its Motion to Quash, 

Strike, or Dismiss Complaint, Respondent refers to this as a hearing, from which it has 

never received a transcript. There is no transcript for Complainant to provide, because 

none exists. 

Respondent also argues that this action is time-barred by a one-year statute of 

limitations, but provides no reference or legal authority for this claim. See e.g. 

" Under FAA Order 21.50.3B [insert citation], "rAlfter FAA legal counsel issues tlie notice of proposed 

action, informal conferences between FAA legal counsel and alleged violators, including their 

representatives, are oHered in civil penalty and certificate action cases, except emergency certificate 

actions. FAA investigative personnel representing the program office aie asked lo participate in the 

informal conference when possible. The purpose of the informal conference is to hear any information the 

alleged violator wjshes to present, and to consider whether this information should affect the propo.ied 

action. The proposed .sanction is not raised above the amount originally proposed. Any violations charged 

that are disproved by tlie information presented at this conference are withdrawn. Ifthe proposed sanction 

is determined to be excessive, it is reduced. Moi-mally the proposed pefialty is not changed unless 

information is presented that was not taken into consideration when the notice was issued." In the present 

case, an informal conference was held and M&R was ufforded the opportunity to present evidence and 

information to the agency attorney and representative from the program office. Amy Frankei. The agency 

determined that the information presented by M & R did not warrant any changes in the proposed legal 

enforcement action. 
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Respondent's Motion to Dismiss at 5, 7. Under 49 USC § 46301 (d)(7)(C), Complainant 

was required to initiate this case no later than two years after the violation occurred, 

unless good cause exists. The Rules of Practice provide that a party may file a motion to 

di.smiss if a complaint alleges a violation that occurred more than two years before the 

agency issued a notice of proposed civil penalty, 14 C.F.R. § 13.208(d). In the present 

case, the employee at issue, Mr. Baker, performed a safety-sensitive function for 

Respondent on July 24, 2008. Complainant issued the Notice of Proposed Civil Penalty 

on July 23, 2010. Complainant inifiated this action, therefore, within the two-year period 

rcqitired; therefore, the complaint should not be dismissed on grounds that it is stale.'"* 

Respondent fiirther argues that it has "ceased operating under the name [M&R 

Helicoptersl and the certificate number thereby rendering the complaint moot." 

Respondent's Brief in Support of Motion to Dismiss at 16, see also Id. at 17, 

Respondent's Motion to Dismiss at 3-4, Respondent's Motion to Strike Allegation at 1. 

Respondent attached a document to its motion that indicates that Dr. Selig, owner and 

operator of M & R failed his Airman Competency/Proficiency Check. Respondent's Brief 

in Support of Motion to Dismiss, Exhibit 8. While this renders Dr. SeHg unable to act as 

a pilot during part 135 operations. Dr. Schg could submit to and pass a proficiency check 

or Respondent could amend its operations specifications to obtain the services of another 

pilot and conduct operations. Respondent continues to hold a valid operating certificate 

and operations specifications to conduct operations under part 135. Accordingly, it must 

comply with all regulations applicable to part 135 operations, even if Dr. Selig failed to 

pass proficiency checks, changed the name of the company, and closed financial accounts 

Complainant is simultaneously tiling with this response an amended complaint deleting two dates of 

performance by Mr. Baker that occurred more than two years prior to the issuance of the notice of proposed 

civil penalty, 

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held by the company. See Respondent's Brief in Support of Motion to Dismiss at 16-17, 

Respondent's Motion to Dismiss at 7. 

Respondent also argues that the alleged violations were addressed in September 

23, 2010 wanting notice issued to it. Motion to Dismiss at 5. That warning notice 

addressed and resolved other alleged violations by Respondent, but not those alleged in 

the complaint. 

The motions filed by Respondent fail to establish any basis for dismissing the 

complaint or for striking the allegation that Mr. Baker was not covered under a drug and 

alcohol testing program. The motions should, therefore be denied. The complaint 

adheres to the Rules of Practice in FAA Civil Penalty Actions, 14 C.F.R. § 13.208(c), and 

the allegations it contains, as well as the appropriateness of the sanction sought by the 

FAA, will be proven at hearing. 
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WHEREFORE, Complainant respectfully requests that the Administrative Law 

Judge deny Respondent's Motion to Quash, Strike, or Dismiss Complaint and Motion to 

Strike Allegation - Mr. Baker Was Not on a Drug/Alcohol Program. 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

^::^^- i ^ 

/tf^Laura Ponto 

Attorney 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Phone: (202)267-9863 

Facsimile: (202)267-5106 

Date: December 10, 2010 

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Certificate of Service 

I hereby certify that on this daie I have placed in the U.S. mail, postage prepaid, 

certified return-receipt a copy of Complainant's Response to Respondent's Motion to 

Quash, Strike, or Dismiss Complaint and Respondent's Motion to Strike Allcgafion - Mr. 

Baker Was Not on a Drug/Alcohol Program In the Matter ofM& R Helicopltr.s, FAA 

Ca.se no- 2009SO950434, addressed to: 

Dr. Michael B. Selig 

President 

M &R Helicopters, LLC 

2045 Westgflte Dr., Suite 205 

Bethlehem, PA 18017 

In addition, I hereby certify that on this date I have sent by the U.S. mail, postage 

prepaid, certified return-receipt, the original and one copy of the foregoing document to: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building - Suite 2W1000 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

•T: > 

Dated: December 10, 2010 

11