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FaOniki M;u"k & J( thnson 

H.illn.ski ,^\:u•k it -lolinson, P.A. 

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December 3, 2010 

Federal Aviation Adrninistiation 

Attn: Hearing Docket CJerk, AGC-430 

600 Independence Avenue, S.W. 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

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Re: Brainerd Helicopter Service, Inc. 

DOT Docket No. TBA 

FAA Case No. 200ySW9102868 

FIMJ File No. 53483-205 

CPicS^ovn/^0/0-[2.12^ 

Dear Hearing Docket Clerk: 

Enclosed tor filing on behalf of Biaincrd Helicopter Service, Inc. please find the 

following documents in connection with ihe ahove-rcferenced matior: 

1. 

2, 

3. 

4. 

5. 

Answer; 

Respondent's Interrogatories lo Complainani (Set One); 

Respondent's Request for Production of Documents (Set One); 

Respondent's Request for Admi.<j.<;ions; and 

Notice of Taking Deposition of Joseph Poisella. 

By copy of this letter, opposing counsel has been served with a co 

^111 I I ^Ver y truly youns. 

e^ 

DCMjrwjf 

Enclosures 

cc: Laura Port to, Esq. 

Donald Chance Mark, Jr 
12/15/201 0 17:3 2 FAX 2024935142 FAA * DMS §1002/01 0 

Before the U.S. Department of Transportation 

Federal Aviation Administr;»tiou 

) 

In the Matter of ) 

) Docket No. TBA 

BRAINERD HELICOPTER. ) FAA Case No. 2009SW910268 

) 

) 

ANSWER 

To: Complainant Federal Aviation Administration and its attorney of record, Laura 

Ponto, Attorney, Enforcement Division, AGC-300, Office of the Chief Counsel, 

Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, 

DC 20591; 

Brainer 1 lelicopter Service, inc., for its answer to the complaint of FAA, herein alleges: 

1 

Admits the allegations of paragraph I. 

II 

Admits the allegations of paragraph TI, number 1, number 5, number 6 and number 7. 

HI 

Admits the allegations of paragraph III, number 1. 

IV 

Specifically denies the allegations set forth in paragraph 11, number 2, number 3, 

number 4 and number 8(a) and (b), and puts FAA to its strict proof thereof. 

V 

Specifically denies the allegations set forth in paragraph 111, number 2, and puts FAA to 

its strict proof thereof, 

VI 

Affirmatively asserts that the flights of April 15, 2009, April 17, 2009 and April 21, 

2009, were firefighting operations conducted under Part 91 of the Federal Aviation Regulations, 
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and further assert.s that 14 C.F.R. part 119, subpart a, scciion 1 l9.1(e)(4)(iv) exempts firefighting 

operations from subjecting a flight crew member to drug testing. 

VTI 

Affirmatively asserts that FAA's civil penalty is barred by the FAA inspector's 

abrogation of his duties to objectively conduct an inspection pursuant to 14 C.F.R. 

VIII 

Affirmatively asscns that FAA is equitably estopped from assessing a civil penalty due to 

the FAA inspector's misrepresentation.s and his affirmative misconduct. 

IX 

Aftirmativcly asserts that respondent is entitled to costs and attorneys' fees pursuant to 

5 U.S.C. § 504. 

X 

Except 35 hereinbefore admitted, qualified or otherwise stated, specifically denies each 

and every matter, thing and allegation contained in FAA's complaint. 

WHEREFORE, Brainerd Helicopter Service, Inc. prays that plaintiffs complaint be 

dismissed, and that it be awarded its costs, disbursements iuid attorneys' fees. 

MARK & JOHN^flfV, PX . 

Dale: December ^ . 2010 

" Donald Chance Mark, Jr. {mi^S9) 

Flagship Corporate Center 

775 Prairie Center Drive, Suite 400 

Eden Prairie, MN 55344 

Phone: 952-995-9500 

Attorneys for Respondent 
12/15/201 0 17:3 2 FAX 2024935142 FAA : ^ DMS @004/01 0 

Before the U.S. Department of Transportation 

Federal Aviation Administration 

In the Matter of 

BRAINERD HELICOVlER. 

Docket No. TBA 

FAA Case No. 2009SW910268 

t\ibs\/i^l1 ho/o-/^7y 

RESPONDENT'S INTERROGATORIES TO COMPLAINANT (SET ONE) 

To: Complainant Federal Aviation Administration and its attorney of record, Laura 

Ponto, Attorney, Enforcement Division, AGC-300, Office of the Chief Counsel, 

Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, 

DC 20591: 

Respondent Brainerd Helicopter hereby requests responses to the following 

interrogatories from Complainant Federal Aviation Administration within thiity (30) days of the 

dale of service, pursuant to 14 C.F.R. 13.220(d). 

1. Identify any and all witnesses you intend lo call to testify; please include the 

following: 

a. The name of the witnes.";, 

b- The cuirent address of the witness; 

c. The current employer. Job title and duties of the witness; 

d. The expected testimony of the witness. 

2. Identify any and all evidence that you contend supports the allegations of FAR 

violations by Brainerd Helicopter; please include the following: 

a. Describe in detail the substance of such evidence; 

b. Identify who obtained such evidence; 

c. Identify when .^luch evidence was obtained; 

d. Describe the circumstances under which the evidence was obtained. 
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3. With respect to Inspector Poisella, state the following: 

a. His current address; 

b. His current employment, job title and duties. 

4. With respect to Inspector Poisella's backgroutid, state the following: 

a. His educational background, including any institutions attended, any 

degrees conferred, the dates of attendance, and the dates of the award of 

any degrees; 

b. Identify any and all FAA certificates or licenses held and include the dates 

that said certificates or licenses were held; 

c. Tlie dates that any certificates or licenses were rescinded, revoked or 

suspended; 

d. The reason for the revocation, rescission or suspension of any of said 

certificates or licenses. 

5. With respect to Inspector Poi.sella's employment with the United States 

government, state the following: 

a. The dates of said employment; 

b. Thejob titles held; 

c- Thejob description for each job title; 

d. Tjie training received for each job; 

e. The dates of each job title; 

t The reason for each change in job title. 

MARK & JOHNSON, 

Date; December * , 2010 . 

Donald Chance Mark, Jr. (/^7659)" 

Flagship Corporate Center 

775 Prairie Center Drive, Suite 400 

Eden Prairie, MN 55344 

Phone: 952-995-9500 

Attorneys for Respondent 
12/15/201 0 17:3 2 FAX 2024935142 FAA * DMS iOOG/01 0 

Before the U.S. Department of Transportation 

Federal Aviation Administration 

In the Mailer of ) 

) Docket No. TBA 

BRAINERD HELICOPTER. ) FAA Case No. 2009SVV91026 2009SW910268 

RESPONDENT'S REQUEST FOR PRODUCTION OF DOCUMEN J S (SET ONE> 

To: Complainant Federal Aviation Administration and its attorney of record, Laura 

Ponto, Attorney, Enforcement Division, AGC-300, Office of the Chief Counsel, 

Federal Aviation Administration, 800 Independence Avenue, S.W„ Washington, 

DC 20591: 

Respondent Brainerd Helicopter hereby requests responses to the following requests for 

production of documents firom Complainant Federal Aviation Administration within thirty (30) 

days of the date of service, pursuant to 14 C.F.K. 13.220(d). 

1. Any and all documents you intend to use at trial. 

2. Any and all documents in support of your allegation that Brainerd Helicopter 

violated any Federal Aviation regulations. 

3. The complete personnel file of Inspector Poisella. 

4. Any and all discipline files, proceedings or other documents related to any 

discipline, suspension, reprimand or admonisliment concerning Inspector Poisella. 

5. Any and all exhibits that you intend to use at trial. 

MARK&JOHNSl 

Date: December ^,201 0 

Donald Chance Mark/Jr. (#6'^59) 

Flagship Corporate Center 

775 Prairie Center Drive, Suite 400 

Eden Prairie, MN 55344 

Phone: 952-995-9500 

Attorneys for Respondent 
12/15/2010 17:33 FAX 2024935142 FAA + DMS 121007/010 

Before the U.S. Department of Transportation 

Federal Aviation Administration 

in the Matter of 

BRAINERD HELICOPTER. 

Docket No.: TB A 

FAA Case No. 2009SW910268 

RESPONDENT'S REOUEST FOR ADMISSIONS 

To: Complainant Federal Aviation Administration and its attorney of record, Laura 

Ponto, Esq., Enforcement Division, AGC-300, Office of the Chief Counsel, Federal 

Aviation Administration, 800 Independence Avenue, S.W,, Washington, DC 20591: 

Respondent Brainerd Helicopter Service, Inc ("Brainerd Helicopter") hereby requests 

responses to the following Requests for Admission from Complainant Federal Aviation 

Administration within thirty (30) days of the date of service, pursuant to 14 C.F.R. 

§ 13.220(l)(l): 

Request No. 1: 

Admit that the flight crewmember duties performed by Michael Wilton on April 15, 2009, were 

done for fire fighting purposes. 

Request No. 2: 

Admit that the flight crewmember duties performed by Michael Wilton on April 17, 2009, were 

done for fire fighting purposes. 

Request No. 3: 

Admit that the flight crewmember duties perfomied by Michael Wilton on April 21, 2009, were 

done for fire fighting purposes. 

Request No. 4: 

Admit that Inspector Joseph Poisella ("Inspector Poisella") received information from Brainerd 

Helicopter specifically identifying that the flights flown on April 15, 2009, April 17, 2009, and 

April 21, 2009, were flown for fire fighting puqioses. 

Request No. 5: 

t k 
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Admit that the fire fighting flights flown by Brainerd Helicopter on April 15, 2009, April 17, 

2009, and April 21, 2009, were flown under FAR Pan 91. 

Request No. 6: 

Admit that the fire lighting flights flown by Brainerd Helicopter, like those flown by the 

respondent in FAA v. Everson, d/h/a North Volley Helicopters, 2000 WL 34229107 (D.O.r, June 

16, 2000), were not subject to FAR Part 121 or 135. 

Request No. 7: 

Admit that 'the FAA has determined, at least as a general matter, that its anti-drug and alcohol 

misuse prevention programs should not unifonnly extend to every operation conducted by an 

aviation entity holding a Part 135 certificate." Id. at *4. 

Request No. 8: 

Admit that Inspector Poisella holds an FAA Airframe and Powerplant mechanic certificate which 

wa.s issued in May of 1969. 

Request No. 9: 

Admit that Inspector Poisella does not hold any FAA ainnan certificates. 

Request No. 10: 

Admit that in the week before Inspector Poisella retired, be contacted Ms. Lillian Burford 

(''Ms. Burford") at Brainerd Helicopter and explained that his audit work was complete, but that 

someone else in his organization wanted Inspector Poisella to obtain a hiring statement from 

Burford which specifically provided that Michael Wilton was hired to perform safety sensitive 

functionsRequestNo. 11: 

Admit that Inspector Poisella required Ms. Burford to issue a hiring statement to Inspector 

Poisella which stated, in these exact words, "Michael Wilton was hired to perform safely 

sensitive fiinctions as a pilot for our Part 135 certificate." 

MARK & JO 

Date: December ^,201 0 

Donald Chance Mark, Jr. (f67659) 

Flagship Corporate Center 

775 Prairie Center Drive, Suite 400 

Eden Prairie, MN 55344 

Phone: 952-995-9500 

Attorneys for Respondent 
12/15/201 0 17:3 3 FAX 2024935142 FAA * DMS I2|009/010 

Before the U.S. Department of Transportation 

Federal Aviation Administration 

) 

In the Matter of ) 

) Docket No. TBA 

BRAINERD HELICOPTER. ) FAA Case No. 2009SW910268 

) 

. ) 

NOTICE OF TAjgNG DEPOSITION OF JOSEPH POISELLA 

To: Complainant Federal Aviation Administration and its attorney of record, Laura 

Ponto, Attorney, Enforcement Division, AGC-300, Office of the Chief Counsel, 

Federal Aviation Administration, 800 Independence Avenue, S.W,, Washington, 

DC 20591: 

PLEASE TAKE NOTICE that the deposition of Joseph Poisella will be taken on 

Wednesday, the 12'*' day of January, 2011, commencing at 9:00 a.m. and continuing thereafter 

until completed, at the offices of Fafin.ski Mark & Johnson, P.A., located at 775 Prairie Center 

Drive, Suite 400, Flagship Corporate Center, Eden Prairie, Minnesota 55344, by and before a 

notary public or some other officer qualified by law, and that said deponent shall be present at 

said time and place for the purpose of a deposition. 

yCl MARK & JOHIi^^J^, P.A. 

Date: December^ ,2010 

Donald Chance Mark, Jr. (^6765*)" 

Flagship Corporate Center 

775 Prairie Center Drive, Suite 400 

Eden Prairie, MN 55344 

Phone: 952-995-9500 

Attorneys for Respondent 
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STA IE OF MINNESOfA 

COUNTY OF HENNEPIN 

ss: AFFIDAVIT OF SERVICE 

Wendy J. Flanery, being first duly sworn on oath, deposes and fitates that on this 3 day 

of December, 2010, she served the following: 

Answer 

Respondent's Interrogatories to Complainant (Set One) 

Respondent's Request for Production of Documents (Set One) 

Respondent's Request for Admissions 

Notice of Taking Deposition of Joseph Poisella 

upon the following-named individual, via U.S. Mail to said individual's last known addre.'?ses 

with postage prepaid thereon, and by depositing same in the U.S. Mail in the City of Eden 

Prairie, Countj' of Hennepin and Stale of Minnesota: 

Laura Ponto, Attorney 

Enforcement Division/AGC-300 

Office of the Chief Counsel 

federal Aviation Admini.stration 

800 Independence Avenue, S.W. 

Wa-shington, DC 20591 

Subscribed and sworn to before me 

this --?"* day of December, 2010 

"^^TCATH Y SODERBERG 

Notary PLibUo4iNWeta 

' M y Comn»wlon eipin* JW*1.» « 

Wendy.!. Flancjg' 0