August 29, 2011 

Hearing Docket, Federal Aviation Adminisiration, 

Orville Wright Building, 

800 Independence Avenue S. W. 

Washington D.C. 20591 

C ' 1 .. :';^ 

FZ^T^mG QOCKET 

Re; 

FAA Docket No. CPIOSWOOIO 

FDMSNO. FAA-2010-0974 

Case No. 2009 SW910051 

Dear Sir or Madam: 

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Enclosed please find the Respondent's Motion to Dismiss for filing in the above referenced case. 

Laurence E. Rohl, President 

Air Z Flying Service Inc. 

355 Richmond Rd. Hangar 5 

Richmond Heights. Ohio 44143 

216-261-2992 

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U.S. DEPARTMENT OF TRANSPORTATIUN 

FEDERAL AVIATION ADMINISTRATION 

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^'^^TilNG DOCKET 

In the matter of: 

AIR Z FLYING SERVICE INC, 

FAA Docket No. CPIOSWOOIO 

. FDMS NO. FAA-2010-0974 

CaseNo. 2009 SW910051 

JUDGE: GOODWIN 

RESPONDENT'S MOTION TO 

DISMISS ON THE BASIS OF 

LACHES 

Now comes the Respondent Air Z flying Service Inc. and mo\es to dismiss this case 

based upon the equitable doctrine of laches, as the respondent has been unduly prejudiced from 

defending the case due to inexplicable and unreasonable delay in instituting the action 

1. Relevant Faas 

On May 28,2008 the Respondent sent an employee of T and G Flying Club Inc., one 

Ritch Kovacic for a **pre-employinent" drug screen so that he could work on safety sensitive 

functions its (Air Z's) charter aircraft. That individual gave a specimen to the collecting agency, 

and it w-as sent to a laboratory and analyzed. Normally the result is orally reported to Air Z 

within days., and then followed by a written copy of the result Bradley Rohl, the designated 

employee representative (DER) of Air Z has testified in deposition, and has some written 

business records of his own, that confirm he received a negative result for the subject's specimen 

He has slated that this date of May 28,2008 may be off a day or two.. Mr. Kovacic then . . 

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performed a .safety sensitive function on an Air Z aircraft well over a week thereafter. (June 6, 

2008). However, in this case accounting procedures were not coordinated properly between the 

collectinir agency, ihc laboratoiy, and the Medical Review officer, through no fault of the 

Respondent. So it remains questionable as to exactly when the official written copy of the 

negative result that Mr, Rohl orally received at the end of May, was sent out Right now, the 

only written copy of the negative test result is in a document dated July 17, 2008 and upon which 

the FA A obviously concluded that Kovacic had been working on an Aix Z aircraft (June 6. 2008) 

prior to that otficial written confirmation of the negative test result being sent out. 

How<;veT, the crux of this motion lies in the dale that the Administrator decided to pursue 

this action and file a complaint. The FAA only sent out its "Notice of Proposed Civil Pcnalt>'" 

on Feb 26^ 2010. This was 19 months after the alleged violation was known to the FAA (7-23-

2008) as Slated in the Enforcement Investigative Report (EIR). (Exhibit A) 

11. Law and Argument 

The discovery documents received from the FAA give no explanation for the 

unreasonably delay in bringing this action, and especially for not bringing it within the time 

trame of 60 days from the receipt of the Enforcement Investigative Report required by their own 

regulations.' (see Administrator's response to interrogatories # 3, 9 attached as Exhibit B). 

Their response is .simply that it was brought within the two year statute of limitations. (Exhibit 

There are several dares on the EiR .but the administrator has responded that the bcsi "dale"' of the report wouJd be 

the ones on form 2150 (exhibit A). Although there may some qucsiion as to which dale would be the one whici' 

constitutes the official generation of ihe £1R, it is absolutely clear that such documcm ahows the FAA was aware of 

this alleged "violaticm" as of June 23, 2008 some 19 months prior to ihe issuance of the '^Notice of Proposed Civil 

Penalty letter" being dispatched to the Respondent, without any explanation for the extreme delay. 

sio/eooi a 5HQ . 

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B) For the foregoing reasons this is unacceptable under the law, and basic principles of equity 

and due process. 

Although the U.S. Supreme Court and the Federal Circuit Courts are very hesitant to 

apply the doctrine of laches against the federal government on the basis of sovereign immunity, 

it has never been completely foreclosed for any type of case. Admittedly this case involves the 

enforcement of a federal protective duty to the public rather than the enforcement of a purely 

private right on behalf of the government, but that does not mean that the government is 

immune. Courts continue to refuse a blanket prohibition against the application of the doctrine 

to the federal government or its agencies. CosuHo v. United States, 365 V.S. 265 (I960): Irwin 

V. Oept. of Veteran Affairs 498 U.S. S9 (1960); Jana v. US^ 936 F2d 1265 (1991) Maksym v. 

Loesch 937 F.2d 1237, 1248 (7th Cir. 1991); K-Mart Corp. v. Oriental Pla-a, 'inc.. %1S F.2d 

907, 911 (1st Cir. 1989): Azalea Fleet, Inc. v. Dreyfus Supply & Machinery Corp.. 782 F.2d 

1455, 1459 (gth Cir. 1986), UniiedStates v. Administrative Enterprises. Inc.. 46 F.3d 670, 673 

(7th Cir. 1995) 

As can be seen in the cases referenced above, most federal cotirts dealing with the issue 

of laches never decide the thr^hold issue of its application to the federal government because 

they find that the core elements of the defense could never be found by the facts before them. 

This case is the reverse of those however, as the core elements of laches are clearly present. To 

make a case of laches one must demonstrate the defense of laches requires a showing of two 

things: (1) unreasonable and unexcused delay by the claimant, and (2) prejudice to the other 

party, either economic prejudice or "defense prejudice" — impainnent of the abihty to mount a 

defense due to circumstance such as loss of records, destruction of evidence, or witness 
unavailability. Costello v. United States, 365 US 265, 282. 5 L. Ed 2d 551. 81 S Ct. 534 

(1961). See also Cornelia v. United States, 851 F.2d 1372. 1377-78 (Fed. Cir. 1988). Those 

elements arc clearly applicable here. The government has offered no plausible reason for its 

unreasonable delay of 19 months in sending its notice of proposed civil penalty from the date of 

its receipt of the Enforcement Investigative Report. The deposition transcript that was submitted 

with the Administrator's perfunctory "Motion for Decision" shows that Bradley Rohl, the 

Designated Employee Representative (DER) for Air Z obviously has been prejudiced in 

presenting what was orally conveyed to him by the Medical Review Officer (Choice Point or 

ASTS, in accordance with the preferred procedures of the FAA itself 49 CFR subpart G. section 

40.167. (a) (I) ) after the drug test was confirmed negative. ASTS also admits that the lapse of 

time here has precluded them from giving an accurate rendition of the sequence of events 

regarding the exchange of information between the entities involved. (Exhibit C)MoreoveT there 

are records that Aii Z attempted to subpoena that have been destroyed by the agency involved, to 

wit, the laboratory which tested the specimen in question. (Exhibit D ). Contrary to the facts of 

many of the cases cited above Respondent has clearly demonstrated the elements of laches to 

exist in this case, and requests this court to apply the well established equitable doctrine of 

laches. There has been unreasonable and inexcusable delay by the government in bringing this 

case (which as demonstrated in the Respondents answer to the "Motion for Decision" was 

brought upon a mistaken assumption of facts), and clear prejudice to the respondent directly 

therefrom. 

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Respectfully Submitted, 

Laurence E. Rohl, President 

Air Z Flying Service Inc. 

355 Richmond Rd. Hangar 5 

Richmond Heights, Ohio 44143 

216-261-2992 

Ceniiicatc of Service 

A copy of this Motion to dismiss was served this ^ / day of August 2011 by regular 

mail on. 

1. Nicolas R. Millard, Attorney, Enlbrccment Division AGC-300 Office of Chief Coimsel, 

Federal Aviation Administration 800 Independence Avenue, S. W. Washington D, C. 20591 

2. Hearing Docket, Federal Aviation Administration, Orville Wright Building, 800 Independence 

Avenue S. W., Washington D. C. 20591 

.^^^-^^-^^ ^f?J / 

Laurence £. Rohl 

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Response to Feb. 24th letter Page 1 of2 

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From: Colc.Milll9rd9faa.90v gav e Ad<lr««a 

To : IrohlOK»tn8tion.com 

CC : 

Oflte :Tnu, 17Mar2011 14:26:32-0400 

Subjea : Response to Pcb. 24th latter 

Hoaderv 

Dear Mr. Rohl: 

Regarding your letter dated February 24, 2011: 

R^uest for Production of Documems Nos. 1-3: 

• TTie deliberative process privilege Is fong-slanding and well-fecognized by the courts. Jordan v. Dept of 

Justice . 591 F.2d 753. 772-73 (DC. Cir. 1976) (en banc), provides a good explanation of the privilege 

and some cas^ law authority. A search of any case law database will turn up more recent invocations of 

the privilege. 

• My apologies if I left out the statement in Item of Proof #4; a PDF copy is attached to this email. To the 

best of my knowledge, all other Items of Proof were provided in our response. 

• Regarding Request No. 2, the documents provided are all such communications within the custody and 

control of the FAA. 

Interrogatoriftfi Nps 3 and 9: 

• The best infontiation we have on when the EIR report was created is in the EIR report Itself, specifically 

Form 2150 

• As noted on page 1-1 of 2150.3B , "This order is a staff manual. It guides FAA enforcement personnel in 

the exercise of their discretion in handling compliance and enforcement matters. However, it does not 

cover every situation, and there will be situations where deviation is warranted." Furthermore, as stated 

in our discovery response, the Notice of Proposed Civil Penalty vras issued before the expiration of Ihe 

two-year statute of limitations. 

InterroQatorv No. 11: 

• Based on the documents you sent to me in your email of March 15, 2011, it appears you have already 

found (assuming the docurrient is authentic) the date of testing for the specimen IWr. Kovadc submitted 

on or about May 28, 2006 and the results of that test The FAA makes no admissions regarding the 

documents provided in your March 15.2011 email, and we did not to the best of my knowledge possess 

the aforementioned document reganling Mr. Kovacic's drug test until I received it from you via email. 

Additionally, the Federal Rules of Civil Procedure and the Federal Rules of Evidence do not apply in this forum. 

They are suggestive, Din not binding. All of the relevant procedural ruloa may be found in 14 CF.R. part 13. 

Sincerely, 

Cof0 R. Milliard 

SLO/ZOO© 

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swa VVd ZPlSZet^ZOc XVd 0C-5L 1102/60/60 
9/28/2009 6:11:48 

ENFORCEMENT INVESTIGATIVE 

REPORT 

(Read OrdGr 2150.3 for instnictions) 

REPORT 

NUMBER 

20O9SW91OO51 

RELATED hUMBER 

AUJEGED VIOLATOR IDENTIFICATION 

1.NAME 

AIR 2 FLYING SERVICE INC 

TELEPHONE NUMBER (7nc/yrf» 

440-953-2992 

S FAA CERTIFICATE NUMBER 

ZFDA222T 

2. ADDR£$S (Incfude Zip code) 

AIR Z FLYING SERVICE. INC. 1885 LOST 

NATION ROAD . V\fl 

3. DATE Of aiRTW 

«. FAA CERTIFICATE TYPE 

05 

LLOUGHBY. OH 44094 

4 SEX 

MALE FEMALE 

7 AVIATION EMPLOYER 

AIRCRAFT, ENGINE, PROPELLER, COMPONENT OR APPLIANCE INVOLVED 

a. MAKE 9. MODEL 10 IDENTIFICATION NUMBER 

11. OWNER 12. ADDRESS ff/iric/da zip cotfo) 

ALLEGED VIOLATION 

13. DATE OCCURRED 

2008/05/28 

14. TIME 1S DATE KNOWN TO f AA 

2008/07/23 

1S. REGrON OF DISCOVERY 

GL 

l7. LOCATION 

16. REGULATIONS BELIEVED VIOLATED 

RELATED DATA 

19. TYPE 

05 

20. sue TYPE 

03 

21. CATEGORY 

22 

22. 

SOURCE 

33 

23>CCIDENT 

ASSOCIATED 

00 

24 SECURfTY PROGRAM 

INVESTIGATING FIELD OFFICE RECOMMENDATION 

2S. SANCTION TYPE ACTION 26. SAMCTION AMOUNT 

l^trloJi-i-tA 

28. 

fNVESTlGATlNG OFRCE 

SW91 

REPORTING INSPECTOR (Typsd flflm#) 

ARMIJO. WILLIAM (817) 

222-4335 

CHIEF {Typec flflffltf and sJgnttun) 

Team Coordinafor Pratt, Jeffery 

REGIONAL DIV^ION REVIEW 

29. REGULATIONS BELIEVED VIOLATED 

32.DATt 33. REGJON 

sw 

31. RECOMMENDED SANCTION AMOUNT 

TYPED NAME/TITLE^IGNATURE OF 

C&E Manager: R^rtan. James 

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B. 

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ANSWERS TO INTERROGATORIES 

}. State the name and title, and job description of the person answering these 

interrogatories. 

Answer: Nicholas R. Milliard, Attorney, Enforcement Division, Office of the Chief 

Counsel, Federal Aviation Administration. He performs legal work related to the enforcement of 

the Federal Aviation Regulations. 

2. State how the Complaint [sic] agency became axuare of the alleged violations stated in 

the complaint, when those facts were discovered, enforcement actions taken, and what yvas done 

if anything to notify the respondent of any violations. Include the dates and person(s) taking 

action for all such events. 

Answer: The Adniinistrator objects lo this interrogatory, as it is irrelevant, overly broad, 

and seeks information that is privileged as the deliberative process of employees and officials of 

the FAA. Insofar as this request is proper and permissible, the releasable portions of the EIR 

contain the requested information. 

3. State why there was no action taken on this case from the lime the alleged "violation " 

was discovered by the complainant until February 2010. 

Answer: Under 49 U.S.C. § 4630Ud)(7XC) and 14 C.F.R. § 13.208(d), a Notice of 

Proposed Civil Penalty must be issued within two years of the date of the violation. The 

violation occurred on May 28, 2008, and the Notice of Proposed Civil Penalty was issued on 

February 26» 2010, three months and two days before May 2S, 2010, when two years would have 

elapsed from the date of violation. 

4. During that period of time from the "discovery of the alleged violation(s) " until 

February 2010. state what, if any procedural or substantive actions were taken by the FAA or its 

employees concerning this case. In your anywer please reference (andprovide per the 

accompanying request for production of documems). any specific actions whatsoever (hat were 

taken by the F.4A or its agents that were taken in the processing of this case, or any specific 

actions or problems that caused any delay. Include the date of any action. 

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Answer: The Administrator objects to this interrogatory, as it is irrelevant and seeks 

information that is privileged as the deliberative process of employees and officials of the FAA, 

attorney work product, and/or attorney-client comraunications. In addition, sec the answer to 

Interrogatory No, 6, supra. 

8. State the nature of any type of remedial, disciplinary, or corrective communication or 

action taken by the FAA with respect to any person or entity in this case, including but not 

limited to, those entities listed in M 5 above. 

Answer: See the answer to Interrogatory No. 6, supra. 

9. State the date the FAA received the Enforcement Investigative Report (EIR) and the 

.specific, articulable reasons why the FAA did not meet its own targeted time of initiating 

enforcement action within 60 days of the receipt of such EIR report. See FAA order 2150.3B 

Chapter 6, section 25. 

Answer: The FAA is unable to stale the date the FA A received the EIR because the 

question is vague and because the FAA generated the EIR based on its investigation of Air Z 

Flying Service Inc. See also the answer to Interrogatory No. 3, supra. 

JO. State the reasons and the calculations of the requested penalty amount, including any 

laws or administrative regulations that form the basis thereof. Include what aggravating and 

mitigation factors were considered. 

Answer: The Administrator objects to this interrogatoryj as it is irrelevant and seeks 

information that is privileged as the deliberative process of employees and officials of the FAA. 

Insofar as this request is proper and permissible, relevant portions of the FAA's sanction 

guidance from Order 2LS0.3B are included in this response 

J J. State the date upon which ihe drug test for the specimen provided by subject Ritch 

Kovacic, on or about May 23, 2008, was confirmed negative. 

Answer: See Item of Proof #3 m the releasable portions of the EIR. 

12. State all methods (i.e. telephone, fax. "downloadfeed", e-mail [sic] letter etc.) the FAA 

or any of its employees receives information regarding any drug testing procedures or results 

from (I) specimen coUeting agencies. (2) Medical Review Officers, and (3) laboratories. 

sto/oio s wo + V¥i in^i^noz XVI ^^-^^ no^/eo/Rn 
MTERNATIVE /AFETY & TE/TINO /OLUTION/ 

SLo/no 

June 30,2010 

KaicD L. Leamon 

Manager, Specif InvestigatioDS Branch 

Drug Abatement Division 

Office of Aerospace Medicine 

Ms. Leamon, 

This is a response to your request regarding a test result for Air Z provided by Ritch 

Kovack (SSN 279-56-9352) on 5/2g/08, reported by Advanced Toxicology Network 

(ATN) for specimen # 105602188. 

I "will respond to your questions in the sequence provided in your e-mail dated 6/29/10> 

with a brief introductioD to the relationship between Concentra Medical Center 

(Concentra) and ASTS Inc. 

ASTS provides MRO and random selection services to approximately 15,000 client 

companies for Concentra in approximately 30 Concentra Medical Centers. Many of 

these are small companies that send an employee to Concentra on rare occasions. When 

the Concentra Center (In this case the Concentra in Willoiighby, OH) obtains a new 

client, they complete a set-up form and forward the information (company name, 

location, contact person, method of result delivery, etc) to both ATN and ASTS. ASTS 

then creates a new client in our data base and awaits a test result. 

In many Instances, paiticulaiiy with smaller coixq>anies, the first indication that the 

company is a new client to the Concentra Center is the arrival of a donor attemptiiig to 

provide a specimen for a drug screen collection, with no advance notice. 

If this company is subject to DOT testing regulations, the Concentra Center will collect 

the specimen and list ASTS as the MRO for that collection. The staff at Concentra is then 

instructed to complete the new client information form and forward to ASTS and ATN. 

ATN then processes the specimen and reports the result to ASTS. 

In the specimen in question, the new client information form was not forwarded to ASTS. 

The specimen was collected, ASTS was named the MRO, and the specimen was 

forwarded to ATN and reported to ASTS. 

In the event that ASTS receives a result from ATN without a matching client company in 

our database, it is our procedure to e-mail the Concentra Center that collected the 

ASTS Inc. 1853 R.W. Berends Dr. Wyoming. NO 49519 

Phone:616-531-6661 FAX: 616-534-5545 

EAlt 'C 

SHQ VVi £_W_5eet30Z XVj iC-St ILO2/ 6 0/60 
specimen and request a set-up form to allow us to report the test result. Typically, the ' :§ 

request receives immediate response and ASTS is able to report the result in a timely v::^i 

manner. On very rare occasions, the request does not receive a response, which results in ;;?; 

repeated requests to the Concentra Center- These requests arc sent on a daily basis listing 

every company and specimen that requires information to report. ASTS understands Ae 

importance of timeliness in the reporting of specimens, which requires us to monitor test 

results not reponed on a daily basis. 

Questions: 

ASTS contacted Concentra Medical Center in WiUoughby requesting information o&.tbe 

client company chat would allow us to report the test reside via e-mail or fax on numerous 

occasions. Our audit trail on our new system origitiated on the date our new system was j 

installed in 2009, therefore we are unable to report the number and time of each rcque^ 

The convcreations between ASTS-and-Concentra were via e-mail and fex and pertained 

only to the requested information that would allow us to report the result to Air Z. No 

information was exchanged regarding the actual result. 

ASTS contacted the Center Administrator at the WiUoughby Concentra Medical Center. ^ 

We are not certain of the name of the Center Administrator back in May of 2008^ 

ASTS was unable to contact Air Z as we did not have the address, phone number, or the 

name of the DER for this company. The only information we had at that time was derived 

from the test result reported by ATN and the CCF. 

Air Z did not contact ASTS during the time that the result was received from ATN and 

the time that ASTS reported the result. 

As ASTS did not have any company information, and since the regulations prohibit the 

MRO from reporting to anyone except the DER for Air Z, we were unable to report the 

test result. 

ASTS received all of the information (the test result and the CCF) to veriiy the test result; 

however, we did aot have any information regarding the company. The verification 

process is not initiated until we have infonnaxioa that allows us to report the result. Until 

thai time, the result remains in "limbo'' while every reasonable effort is made to obtain 

the appropriate company infonnation. When ASTS received company contact 

infonnation, we verified the result and immediaiely contacted the DER from Air Z of the 

test result 

As ASTS MRO services are a client of Concentra Medical Centers, a charge is generated 

at the end of every month for each specimen received from ATN collected at each 

Concentra Medical Center, At the end of May, the WiUoughby Concentra was invoiced 

for the specimen received listing the date of collection, donor's name, and SSN. 

ASTS Inc. 1853 JLW. Berends Dr. Wyotning. MJ 49519 

Phone: 61^531-^661 FAX: 616-534-5546 
At no point did ASTS report the resuh to Air Z, Concentra or any other party, verbally or 

written, until the set-up sheet was received via Fax transmission on July 15, 2008. ASTS 

then verified the result and forwarded the result lo the DER at Air Z. 

I hope this information is useful and please contact us if we may be of further assistance. 

Sincerply/' ^/^/ . 

Vcm Jones;»Presidem 

ASTS Inc. 1853 JLW.Drrends Dr. Wyoming, Kfl 49519 

Phone: 616-5J1 -6661 FAX: 616-534-5545 

V. 

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U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIA HON ADMINISTRATION 

CIVIL PENALTY SUBPOENA J ) (JCCS TddO/K . 

In the Matter of: Docket No.: CPIOSWOOIO 

AIR Z FLYING SERVICE. TNC. • DMS No.: 2011M)974 

FAA Case Number 2009-SW-910051 Issued OD: KIAA tm JI/}// 

To: ^/^/./V/.? i t^//?frJT>,'/<i -/]c//J0JlO^ '^cJ/l/\Af.y, h^tJj^ A 

Under 14 C.F.R. 5 13.228(a). YOU ARE REQUIRED: /^-i/yvt-LS^ /CULtS^C C 3 ? o 

p j To appear and iCElify beforr an Adminislmtive Law Judge of the Dcparaneni of Transportation 

ai: _^ . ^ . 

inUieciiyof on the , day of 20 

at am 

I I To appear and testify at a deposition to be conducted by: . , . 

at: • 

in the city of on the ^^_ day of \ 20 

at ain 

If you haveany questions al^jfut this suftpocna, cdniacf L^uJ^f} ^ JOJ .,J<AJ^I / ^.^uAlfti. 

at thi&.addre&s and telephone number r jf^-< Rir k ir^nifJP ^ /fdLff.g g% W ^ . i __ ^ 

/ifyl^ tWC/.^ 

Stephanie McClain 

Hearing Docket Clerk 

AuUiority: 14 C.F.R. J 13.228; 49 U.S.C. $fi 5121 and 1.47(jXI). or 49 U.S.C 6§ 46104 anJ 106(g)(1) 

ANY PERSON WHO DOES NOT OBEY THIS SUBPOENA IS SUBJECT TO 

FINE OR IMPRISONMENT OR BOTH UNDER 49 U.S.C § 46313. 

V ^ 
CERTIFICAl ION OF NO RECORDS 

Custodian of Records for: 

Advanced Toxicology Network 

3560 Air Center Cove, Suite 101 

Memphis, TN 38118 

Records PertEiining to: Ritch Koracic 

D.O.B 02-24^1954 

1D# 105602188 

A thorough search olour files, carried out under my direction revealed documents you 

requested have reached its maturity date and have been destroyed DOT guidelines 

requires us to keep records for 24 months. At thi.s point in time we arc not able to help 

you with this request. 

I DECLARE, UNDER PENALTY OF PERJURY. THAT THE FOREGOING IS 

TRUE AND CORRECT. 

Signature Jr<^<:.»-^^ ,l A Printed Name <r-e*'*ic"C\ Mnt^^'y 

Executed on (;datc) .• \ (A.-^ •9> ^ . ^'^_ 

I I 

3£L 

•AciTorn to bcfortjnc in fn,Y 

rhli a^'<l, v of Jc-^-.^ 

. • Nou n Publir In mi l Tor thi 

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ignSlurl 

My coramniion cip<rn_ 

Noitry PuMlf 

July 6, 2013 

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