y 

MICHAEL B. SELIG, M.D., FA.C.C. 

LifeLine Cardiology •iRTMEMTGF 

RWION 

i P 1- 00 

M & R Helicopters, LLC. 

2816 0refieldRoad 

Allentown, PA. 18104 RECEIVED 

May 10, 2011 JUN H 2(JW 

Charles Raley, Esq NEARIN G DOCKET 

Enforcement Division/AGC-300 

Office of the Chief Counsel 

FAA 

800 Independence Avenue, SW 

Washington, DC 20591 

Re: Failure to settle the Case (CfH^^^ ^ f ^ 2t^0 1211 

Dear Mr Raley: 

I would like to thank you for your efforts, the only such offering made in a 2 

(two) year time span, towards amicable resolution for case closure. It is 

unfortunate that at this juncture we were still unable to reach agreement. 

To recapitulate, your offer during our conversation was to forgo any fine 

violation, based on MRH financials previously submitted to Ms Ponto by fax, first 

class mail and to the docket, in January 2011, but for some unknown reason she 

was unaware of this data as she admitted in the telephone conference of 

March 25, 2011 before Judge Yoder. 

Likewise you agreed (correct me if I am wrong) that the initial premise 

used for Ms Williams initiation of this violation was based on Mr Baker not being 

on any monitoring program, which was always inaccurate. By way of our 

conversation, it appears that you disregarded the salient point that no 

operations occurred during the violation period. 

Particularly confusing is the notion that you appear steadfast in your 

resolve to move forward with intent to go to court to memorialize the MRH 

violation, despite no financial penalty remuneration. These actions suggest and 

foster unjust malicious litigation. By way of David and Goliath tactics it can only 

be' depicted as harassment and intentional infliction of emotional distress being 

perpetrated by the now 4*^^ FAA attorney. 

Gateway Professional Center • 2045 Westgate Drive, Suite 205 • Betfileliem, Pennsylvania 18017-7474 

VoiceA/M 610-868-6200 • Fax 610-868-1489 • Education Service 610-868-6203 • E-Maillifelinecard@verizon.net 
Since this cose clearly lacks substance and is non-meritorious, I ask you 

once again to act judiciously by immediately closing this case, as strongly urged 

by Judge Yoder, wherein he stated that "this is "one of the least sensible cases 

he has seen in 35 years of being a judge". I would hope that in the spirit of 

immediate resolution, you will magnanimously concur with the honorable judge 

and close this case. 

Yours Sincerely, 

Michael Selig, MD, FACC, CFI-H 

C: Honorable Judge Yoder 

n 
U.S. DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

Charles Raley, Cynthia Dominik, Laura Ponto, 

Peter Lynch, Lafonya Williams 

Complainants 

M & R Helicopters, LLC. 

Respondent 

Honorable Judge Ronnie Yoder 

Docicet: 2010-1211 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that I have this day served the foregoing entrie(s): 

Letter to the Charles Raley, Esq. 

Failure to Settle the Case 

upon all parties of record in this proceeding, in accordance with the requirements of Rule 29 

pursuant to 28 U. S. C. § 1746 . 

Service bv first-class mail, postage prepaid, addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue. SW 

Wilbur Wright Avenue-Suite 2W1000 

Washington, D.C. 20591 

Aft: Hearing Docket Clerk. AGC-430 

LXFA X 202 493 5142 

The Honorable Ronnie A. Yoder 

US Department of Transportation 

Office of Hearings, M-20, Room El 2-320 

1200 New Jersey Avenue. S.E. 

Washington, DC 20590 

L^k X 202 366 7536 

Laura Ponto, Bq. 

Enforcement Division/AGC-300 

Office of the Chief Counsel 

FAA 

800 Independence Avenue. SW 

Washington. DC 20591 

^ ^ FAX 202 267 5106 

By:_ i^ya 

Michael B. Selig, MD, FACC. 

2816 0refieldRoad 

Allentown. Pa. 18104 

610 360 3953 ^ M-SJ H 

Date: ^~^'<>'\\ 
05/10/201.1 7:45PM FAX 00001 

Job No. 

Sheets 

Unsent 

t*t*tttttttttttt*ttttt****t*tttt * 

*«* Multiple Destinations *** 

0202 

3 

Sent 

[ 01] 12024935142 

[ 03] 12022G75108 

Error 

[ 02] 12023667536 

FAA DOC 

PONTO 

VODER 

MICHAEL B. SELIG, M.D., F.A.C.C. 

LifeLine Cardiology 

^ 

M & R Helicopters, LLC. 

2816 Orefield Rood 

Ajlentovs^n, PA. 18104 

May 10. 2011 

Charles Raley, Esq 

Enforcement Dlvlslon/AGC-300 

Office of the Chief Counsel 

FAA 

800 Independence Avenue, SW 

Washington, DC 20591 

Re: Failure to Settle ttie Case 

Dear Mr Raley: 

I would like to thank you for your efforts, the only such offering made in a 2 

(two) year time span, towards amicable resolution for case closure. It is 

unfortunate that at this juncture we were still unable to reach agreement. 

To recapitulate, your offer during our conversation was to forgo any fine 

violation, based on MRH financials previously submitted to Ms Ponto by fax, first 

class mail and to the docket, in January 2011, but for some unknown reason she 

was unaware of this data as she admitted in the telephone conference of 

March 25, 2011 before Judge Yoder. 

Likewise you agreed (correct me if I am wrong) that the initial premise 

used for Ms Williams initiation of this violation was based on Mr Baker not being 

on any monitoring program, which was always inaccurate. By way of our 
MICHAEL B. SELIG, M.D., F.A.C.C. 

LifeLine Cardiology 

M & R Helicopters, LLC. 

2816 Orefield Road 

Allentown, PA. 18104 

May 14,2011 RECEIVED 

Charles Raley, Esq «^o-ixr-"r 

Enforcement Division/AGC-300 [ [EARIN G OOCKc T 

Office of the Chief Counsel 

FAA 

800 Independence Avenue, SW 

Washington, DC 20591 

1^202-267-5106 

Re: Request for FAA Regulations and Procedures for FAA Legal Representation by 

Unlicensed Attorneys . 

Dear Mr Raley: 

I have not received a response to my letter of May 10, 2011. I remain 

hopeful that we can still reach accord for a complete dismissal of this case. This 

case from the beginning to end has lacked substantive merit that MRH willfully or 

wittingly breached a regulation. 

Also, during the course of this litigation it appears that Ms Ponto abused 

her discretion in her findings of fact, failed to base her allegations on proper 

procedural grounds, thereby committing errors of law, resulting in her erred 

conclusions of law. Ms Ponto based her initial premise for this violation by 

insisting that Mr Baker was not on any monitoring program, which was 

inaccurate. She did not consider or investigate the salient point that no 

operations occurred during the violation period. She did not consider and then 

testified to Judge Yoder that she did not know that the company operated at a 

loss, despite submitting MRHs LLC tax returns to Ms Ponto by fax, first class mail 

and to the docket, in January 2011. She redacted the violation date once she 

was made aware that the violation was sitting for over 2 years, past the stale 

complaint rule. There were many assertions in the Pre-hearing Conference by 

Ms Pontsthat put her credibility at question. 

During the course the litigation, it became apparent that Ms Ponto was 

unfamiliar with the docket information, inexperienced, not a licensed attorney, 

by default either did not take and/or pass her bar examination. All requests 

regarding her specific credentials were denied. Forthwith, she recused herself 

Gateway Professional Center • 2045 Westgate Drive, Suite 205 • Bethlehem, Pennsylvania 18017-7474 

VoiceA/M 610-868-6200 • Fax 610-868-1489 • Education Service 610-868-6203 • E-Maillifelinecard@verizon.net 
from this litigation. It appears that all pleadings (in excess of 100), were based 

on her-represeptations that she was a salaried, licensed attorney for the FAA, 

without disclosure, on direct request as to her true status. Also worthy of mention 

is that her pleadings lacked countersignature by a licensed attorney. I 

challenge the appropriateness of these pleadings that were entered into the 

record. There has now been four attorneys' in this case. Ms Ponto nor her 

apparent supervisor Ms Dominick who was co-counsel for the FAA in the hearing 

of March 25, 2011, ever entered their entry of appearance. Mr Lynch and you 

entered their appearance only at a late date. These pleadings have cost 

innumerable man hours on both sides with a negative return on government 

spending at the taxpayer's expense. Judicial resources have in addition been 

squandered and abused. 

Accordingly, I now request that you make available the specific 

regulations that clearly demarcate the parameters in which representation for 

the FAA in these matters can be done by an unlicensed attorney under the 

above circumstances that is contrary to standard practices. 

Yours Sincerely, 

Michael Selig, MD, FACC, CFI-H 
Page 1 of2 

• From: <Charles.Raley@faa.gov> 

To: "mselig" <mselig@ptcl.net> 

Sent: Monday, May 16, 2011 7:01 AM 

Subject: Re: Confirmation of Correspondence 

Dr. Selig, 

I am in receipt of both sets of correspondence. 

Thank you. 

Charles 

Charles Raley 

AGC-300 

(202) 267-3357 (Office) 

(202) 267-5106 (Fax) 

charles.raley@faa.gov 

From. "mselig" <msellg@ptd.net> 

To: Charles Raley/AWA/FAA@FAA 

Date: 05/14/201104:53 PM 

g Confirmation of Correspondence 

Mr. Raley 

Please confirm tJiat you have received and reviewed the correspondences dated May 

10,2011 and May 14, 2011. 

Thank you 

Michael Selig 

From: CharlesJlaley@fea-&QV 

To: mselig@ptd.net 

Sent: Thursday, May 05, 2011 8:18 AM 

Subject: Notice of Appearance 

Dr. Selig, 

Attached, please find my Notice of Appearance in the matter of M & R Helicopter, DOT Docket No. 

CPlOSOOOll, FAA Case No. 2009SO950434. 

Thank you. 

5/16/2011 
Michael Selig, MD, FACC, CFI-H. 

Respondent 

2816 Orefield Road 

Allentown, PA. 18104 

RECEIVED 

JUN 1 ^ WW 

BEARING DOCKET 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Federal Aviation Administration 

Connplainant 

M & R Helicopters, LLC. 

Respondent 

Honorable Judge Ronnie Yoder 

Docket: 2010-1211 

RESPONDENT'S MEMORANDUM OF LAW SUPPORTING 

DISMISSAL OF CITATION 

AND NOW, comes Respondent, MICHAEL B. SELIG, MD, FACC, principle for MR 

Helicopters, LLC, (shutdown since June 2007) who files the following 

Menriorandum of law Supporting Dismissal of Citation and in support thereof 

avers as follows. 
^ ^ I. STATEMENT OF FACTS 

A. THE INSPECTION AND RESPONDENT'S REMEDIAL MEASURES 

The subject citation arises from an audit performed on July 21, 2009, ot 

MR Helicopters, LLC, (MRH) on July 21, 2009 by FAA Officers, Latonya Williams 

and Kimmy Poon for the initial scheduled inspection at the joint office of Lifeline 

Cardiology and MRH. Two days after the initial inspection on July 23, 2009, FAA 

Officer, Ms. Williams returned alone for further inspection of MRH drug 

consortium records. Ms. Williams tool< an excessive amount of time in doing her 

inspection, over 2 hours, thereby delaying Respondent's principal and owner, 

Dr. Michael Selig's patient care responsibilities. She also insisted that Dr. Selig 

write an "on the spot" letter to her, asserting facts that were not clear in his mind 

at that rushed period in time. 

At the time of her inspection, Ms. Williams reached the unfounded 

conclusion that mechanic Edward Bal<cer was not covered under any FAAMandated drug/alcohol testing program. This erroneous conclusion was 

documented in her I09 report. At the time of her inspection, Ms. Williams also 

disclosed that there was a policy change that occurred in February 2004 which 

required all A & P mechanics to be on a company specific drug and alcohol 

program. During the inspection. Dr. Selig explained to Ms. Williams tliot MRH tiad 

not performed port 135 operations since before June 2007 and thie company 

operated at a loss. 

• MRH was not notified or aware of this policy change nor, in fact, was 
FAA operations inspector Frank Alotta. Mr. Alotta hod performed inspections of 

MRH facilities for five years prior to 2009 and did not inform nor was aware of this 

policy change. In fact, none of the management personnel at the Allentown 

FSDO were informed of the regulation change. 

In August 2009, Respondent voluntarily placed Mr. Baker on its own 

companies already existing drug/alcohol program and reissued a preemployment affidavit at Ms. Williams' instruction (despite one already in his 

record) that averred he never had a positive drug/alcohol test and negative 

random testing was performed, despite not doing operations. Ms Williams was 

made aware of these compliance measures, but she chose to pursue the 

violation, never the less. 

B. ISSUANCE OF THE CITATION 

On August 14, 2009, Ms. Williams's letter informed MRH that the above 

violations were under investigation. On July 27, 2010, Respondent was served 

with a Notice of Proposed Civil Penalty, citing a potential fine of $5,400.00 (Fifty 

Four Hundred Dollars) from Laura Ponto for a violation that first occurred on 

November 2, 2007; 8 months past the 2 year-Stale Complaint Rule -Statue of 

Limitations. 

After Respondent brought up the topic of the statute of limitations, the 

Complainant quickly changed the initial complaint violation starting date to the 

later July 24, 2008, so that the violation appeared to have been entered just one 

day before the 2 year deadline. 
• 

On August 6, 2010, Respondent sent a letter to Ms. Ponto detailing the 

statements of fact, evidence and request for an informal hearing along with an 

affidavit that Mr. Baker had worked for Air Methods Corporation. Other 

documentation was sent confirming that Mr. Baker worked for ERA Med and Air 

Methods to the present date. 

On September 23, 2010, Ms. Williams changed the citation from Mr. 

Baker alleged failure to be on any drug/alcohol program to his not being on a 

drug/alcohol program prior to the use of his services. This statement has also 

always been false. 

On October 1, 2010, an informal telephone hearing was held before 

field manager Mr. Frankle, attorneys Charles Raley and Ms Ponto. In that 

discussion, it was stated the policy change occurred in January 2004. On 

October 25, 2010, Respondent was served with the Final Notice of Proposed Civil 

Penalty for a fine of $5,400.00. 

On November 19, 2010, the citation stated the primary premise for the 

complaint that Mr Baker was not on a monitoring program before performing 

services. On December 13, 2010, an amended complaint was served to 

respondent, this time changing the violation dates so that they would appear to 

fall closer to the two year statute of limitations and lowering the fine amount to 

$4,400.00. 

C. FAILURE TO SEHLE THE CASE 

On March 25, 2011 a telephone Pre-Hearing conference occurred 
before the Honorable Judge Yoder when most of the matters were discussed. 

Ms Ponto an unlicensed attorney and Ms Dominik, her supervisor were present, 

representing the FAA despite never entering their entry of appearance in this 

case. It became apparent that Ms Ponto did not read the docket information 

including the ongoing financial losses of MRH that were also sent directly to her 

by first class mail, by fax and to the docket, admitted to such and did not 

consider that MRH was not operational during the violation period as well as 

many other factors. The Honorable Judge Yoder affirmed that this case was 

"one of the least reasonable cases he had seen in his 35 years of being a judge" 

and firmly advised settlement. 

Ms Ponto then recused herself from the case and Charles Raley entered 

his appearance. On May 10, 2011, Mr Raley came forth with the one and only 

settlement offer by the agency that dismissed all financial penalties based on 

the financial losses, but for respondent to agree to the violation theory to be 

entered into record. Ms Riley was not willing to completely dismiss the case in its 

entirety and willing to proceed to hearing despite the ongoing costs to the 

agency and taxpayers and squandering of judicial resources at time of 

unprecedented governmental deficits. 

11. ARGUMENT 

The subject citation should be dismissed in its entirety for four reasons. 

First, it is an unavoidable fact that MRH was not even in operation during 

the alleged violation period and had voluntarily ceased such operations under 
under Section 119.69 in good judgment and for the safety of the public. This 

fact is fatal to the citation and should result in its dismissal as a matter of law in 

accordance with the Decision and Order in In the Matter of David E. Everson 

d/b/a North Valley Helicopters, Inc.. FAA Order No. 2004-5. The determinative 

fact of Respondent's non-operation during the alleged violation period is also 

supported by financial and the tax information submitted to the docket and of 

record. Second, Mr. Baker is not, and has never been an employee of MRH. 

MRH could not therefore be required to have Mr. Baker, a non-employee, under 

its own FAA approved monitoring program when he was on his primary 

employers program. Third, MRH was not provided adequate notice of any 

changes to the regulations. Fourth and finally, the citation is barred by the stale 

complaint rule. 

A. MRH HAS NOT BEEN IN OPERATION SINCE 2007 

RENDERING THE CITATION MOOT 

Respondent decided in good judgment for the best interests and safety of 

the public under part 119.69 to withdraw all part 135 operations due to human 

factors beyond his control. As such and in addition, MRH has not had a qualified 

pilot or been able to carry on part 135 operations since June 2007. MRH has also 

since ceased operating under the name and under the certificate number 

thereby rendering the citation moot. All financial accounts associated with MRH 

were also closed. Regulation 135.255 refers to the certificate holder "and" 

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 or performing part 135 flights. 

In accordance with the Decision and Order in In the Matter of David E. 

Everson d/b/a North Valley Helicopters, Inc., FAA Order No. 2004-5 as referred to 

by Judge Yoder in the telephone hearing of March 25, 2011, one may not be 

cited or liable for alleged operations violations occurring during a period in time 

when no operations actually occurred. Because MRH was not in operation, did 

not have a pilot and did not fly any part 135 flights during the relevant period of 

the violation, the citation must be dismissed. 

Furthermore, due to confirmed inconsistency, confusion and complexity of 

these drug/alcohol regulations parts 135.251 and 135.255, they have been 

"Removed and Reserved effective July 13,2009". ^^''^^ -^Ac, ^^^>2>IC 

'FAA is worlcing on a major revision of its drug and 

alcotioi testing regulations. Given the complexity of that 

revision and the time it will talce to complete the 

rulemal(ing process, the FAA has concluded that in the 

interim it makes sense to pull the existing regulations 

together in one place'. 

B. MR. BAKER IS NOT AND HAS NEVER BEEN AN EMPLOYEE OF 

RESPONDENT 

The primary premise for the violations of this case rests on the assumption 

that Mr. Baker A&P was not on a drug/alcohol testing program when performing 

safety sensitive functions on the MRH aircraft. Mr. Baker was and always has 

been a moonlighter, free lancer for the work he did on MRHs aircraft that 
occurred 1 day out of each 2 year period. Mr. Baker was not an employee of 

MRH. He did not work regularly for MRH, he did not receive regular paychecks, he 

was not provided health insurance, he was not under the control of MRH or how 

the work was to be done, but worked independently on his own accord, not 

under the direct control of MRH as is the common law test. He was not subject to 

disciplinary action. He was not under any kind of contract. 

Mr. Baker has always been a full time employee since 1996 by the regions 

University Medlvac Hospital service, always on a drug/alcohol program. Mr Baker 

was employed by Helicopters Incorporated in 1996. They lost the contract and 

Keystone Helicopters took them over in late 2006. Several company buy outs and 

acquisitions occurred resulting in Keystone to Seacor to Aeromed to Sikorsky to 

ERA Med (from May 1, 2006- November 4,2007). He has been employed by Air 

Methods Corporation, (not Flight Methods) from November 5, 2007 to the present. 

Mr Baker in addition was concun'ently on the National Guard drug/alcohol 

program in his capacity as a National Guard A&P and Helicopter pilot. 

Mr. Baker was employed full-time by his primary employer who provided 

him a weekly paycheck and worked 40 hours a week and received health care 

benefits. He was always on a random drug/alcohol testing program without 

interruption by that primary employer. 

All pertinent alleged violations, particularly part 121 Appendices I and J 

pertain only to "employees" of a company, which Mr. Baker was not and does not 

include or mention provisions or exclusions for non-contract, free lance or 
• 

moonlighters. As such, the citation issued must be rendered invalid and dismissed. 

C. MRH WAS NOT PROVIDED ADEQUATE NOTICE OF ANY REGULATORY 

CHANGES 

The regulations relied upon by Complainant are not contained in the 

most common FAA book reference, the FAR/AIM and are not cleariy referenced 

or disclosed in the signed operation specifications. These regulations are 

thereby hidden, omitted and concealed making compliance difficult to 

impossible. 

It is not proper or reasonable to expect an operator to randomly find 

text not cleariy written, spelled out in the compliance statement, operation 

specifications or FAR/AIM or to review hundreds of pages of text on a remote 

website to focus, find, comprehend, compare and then determine if a random 

change in a single isolated regulation had occurred. It is not stated where the 

exact source location of these unidentified and hidden (fine print) regulations 

are to be located or at what time Interval to carry out this tedious hit or miss 

search exercise that is prone to misinterpretation and error, therefore, it is 

impossible to ever be completely compliant at any point in time, if a regulation 

changed or update occurs, without notified or knowing, as is cleariy evidenced 

by the history of the FAA's own officers. It is also impossible to do this time 

consuming, random search on a regular basis and is more prone to mistake and 

entrapment, that is procedurally inconsistent with the forthright notification 

procedure that is in place for all other chapters in the operation specifications, 

which uses a effective, personalized, one on one approach by known and 
i established FAA inspectors in the sprit of compliance and safety. 

Ms Williams Informed Respondent that the regulation changes occurred 

in February of 2004 but the operation specifications A449 were signed off in 

January 2004. MRH was not informed of the regulation change by Mr Roots in 

- Aprifcof^2004T wherv MRH~underwent its firsts FAA^drug/aleohol^ auditr MRK was nof--

Informed during-5 years of FAA operations inspections by Frank Alotta, was not 

inforrnecl during frequent maintenance inspections by FAA inspector Gerry 

Henninger. The Allentown FSDO is located across the street from the MRH 

alrcraff and itiofficei^s inspected frequently during, their daily activities at the 

Lehigh Valley International Airport (ABE) where the aircraft has been hangared 

for over 10 years, nbver to find MRH ih violation of FAA regulations. The manager 

of the Allentown FSDO, Mr Wadsworth, also was unaware of the policy change. 

Therefore the FAA's officers and its own drug abatement officer was also not 

informed of the regulation change just as MRH was not. 

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

scenario of no one knowing of the regulation change, only encouraged the 

potential violation and unreasonable to hold the respondent to a standard 

higher or a double standard than their own FAA officials or drug inspection 

officers who themselves did not know or inform MRH of the regulation change. 

14 C.F.R. part 121, Appendix I and J and 49 C.F.R. part 40 are not 

disclosed and no forthright notification procedure was in place to inform the 

operator of this change, contrary to the routine protocol follovved by all other 

10-
• 

operation specification chapters which included a regular notification 

procedure, updated and re-written operation specification revisions, physically 

replaced pages and subsequent re-signoff and confirmation of the new pages 

that the operator is aware and agrees. It is therefore not proper or reasonable 

to hold MRH responsible for changes he was not formally or otherwise notified of 

or signed off on. 

D. THE CITATION MUST BE DISMISSED BY VIRTUE OF THE STALE 

COMPLAINT RULE 

On July 28, 2010, Respondent was served with a Notice of Proposed Civil 

Penalty, citing a potential fine of $5400 (Fifty Four Hundred Dollars) from Laura 

Ponto for a violation that first occurred on November 2, 2007; 8 months passed 

the 2 year-Stale Complaint Rule -Statue of Limitations. After Respondent 

brought up the topic of the statute of limitations. Complainant quickly changed 

the initial complaint violation using a starting date to the later July 24, 2008, so 

that the violation appeared to have been entered just one day before the 2 

year deadline. However, Complainant used a document draft dote for the 

violation of July 23, 2010, when the sen/ice date was July 28, 2010. When 

Complainant was initially and repeatedly asked to provide the postmark 

information or a sen/ice date for the violation, it claimed not to not have it, 

despite sending the violation certified mail, return receipt requested. Only later 

after Judge Yoder ordered production of this information did complainants 

produce this information. This does not change the fact that the initial dates 

cited and therefore the starting date for the complaint on the violation was 

-11 -
November 2, 2007, but the 2 eariier dates had to be dedacted, retrospectively 

in order for the complaint to come within the statute of limitations by one day. 

On September 23, 2010, Ms Williams's letter concerning the proposed 

violation alleged Mr Baker was not on any drug/alcohol program. This 

statement has also always been false. 

On October 25, 2010, the Final Notice of Proposed Civil Penalty cited the 

November 2007 date (2 years, 8 months later) as the first alleged violation and 

stated that Mr. Baker was not on MRH's monitoring program at time of his 

services. 

On November 19, 2010, the moving target complaint was changed and 

re-crafted to stay afloat at any costs, the primary premise for the complaint 

changed back to Mr. Baker not being on any monitoring program at the time of 

performing services, another erred statement. 

On December 13, 2010, the complaint was then amended and served 

to respondent, this time changing the violation dates so that they would appear 

to fall within the 2 year statute of limitations, using only the latest date of July 24, 

2008 and lowering the fine amount to $4400. 

Because of this constant re-crafting of the complaint to fit the tumbling 

needs of the moment, respondent filed a Motion for Protective Order (February 

6, 2011) requesting to stabilize the complaint or render it moot. This motion in 

addition was ignored and circumvented to which a response was never filed by 

Complainants. 

12-
_ . VII. CONCLUSION 

• 

For all of the foregoing reasons Respondent respectfully requests the 

citation be immediately DISMISSED. 

Respectfully Submitted, 

Michael B. Selig, MD, FACC, CFl-H. V^ ^ 

Date ^-9-^1 1 

13-
U.S. DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

Charies Raley, Cynthia Dominik, Laura Ponto, 

Peter Lynch, Lafonya Williams 

Complainants 

M & R Helicopters, LLC. 

Respondent 

Honorable Judge Ronnie Yodei 

Docket: 2010O21T 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that I have this day served the foregoing entrie(s): 

RESPONDENT'S MEMORANDUM OF LAW SUPPORTING 

DISMISSAL OF CITATION 

upon alfparties of record in this proceeding, in accordance with thie requirements of Rule 29 

pursuant to 28 U. S. C. § 1746. 

Service bv first-class mait. postage prepaid, addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, SW 

y/ilbur Wright Avenue-Suite 2W1000' 

Woshirigton, D.C. 20591-

Att: Hearing Docket Clerk, AGC-430 

^ A X 2024935142" 

Laura Ponto, Esq, 

' Enforcement Dlvislon/AGC-300 

Office of the Chief Counsel 

•' FAA' ' ^ • 

800 independence Avenue, SW 

>W< 

i/FA 

ashingjon, DC 20591 

FAX 202 267 5106 

The Honorable Ronnie A. Yoder ^ 

US Department of Transportation 

Office of Hearings, M-20, Room El2-320 

1200 New Jersey Avenue. S.E. 

ashington, DC 20590 

202 366 7536 

X 

Washii 

1/FAX2C 

^ 

J - ^ 

By: 

Michael B. Selig, MD, FACC. 

2816 Orefield Road— 

Allentown, Pa. 18104 

6103603953 

Date: S^&o-U 
Page 1 of 1 

From: <Charies. Raley @faa.gov> 

To: "mselig" <mselig@ptd.net> 

Sent: Tuesday, May 24, 2011 7:01 AM 

Subject: Re: Confirmation of Correspondence 

Dr. Selig, 

I am in receipt of your memorandum. 

Regards, 

Charles 

Charles Raley 

AGC-300 

(202) 267-3357 (Office) 

(202) 267-5106 (Fax) 

Charles, raley @faa .gov 

From. 

To; 

Date: 

Subject: 

"mselig" <rDsellg@ptd.net> 

Charles Raley/AWA/FAA@FAA 

05/21/2011 05:53 AM 

Confirmation of Correspondence 

Mr. Raley 

Please confirm that you have received and reviewed my memorandum of law dated 

May 20, 2011 

Thank you 

Michael Selig 

6/5/2011 
• 

Michael Selig, MD, FACC, CFI-H. 

Respondent 

2816 Orefield Road 

Allentown, PA. 18104 

MJECEIVE 

JUN 1 ^ zatt 

[ fEARING DOCKET 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Federal Aviation Administration 

Complainant 

M & R Helicopters, LLC. 

Respondent 

Honorable Judge Ronnie Yoder 

Docket: 2010-1211 

RESPONDENT'S REPLY TO COMPLAINANTS BRIEF 

AND NOW, comes Respondent, MICHAEL B. SELIG, MD, FACC, principle for MR 

Helicopters, LLC, (shutdown since June 2007, a single pilot, owner, operated) 

who files response to the Complainants brief and in further support of the 

request for Citation Dismissal. 

1. MRH HAS NOT BEEN IN OPERATION SINCE 2007 

RENDERING THE CITATION MOOT 
Complainants erred by making a point to state that MRH had an ACTIVE 

(emphasis added) certificate. How could the operation be active if it was unable 

to carry out operations because there was no qualified pilot? Respondent 

decided in good judgment for the best interests and safety of the public under 

part 119.69 to withdraw all part 135 operations due to human factors beyond his 

control. 

Complainants tried to assert in reference In ttie Matter of David E. Everson 

d/b/a Nortti Valley Helicopters, Inc., FAA Order No. 2004-5 that not performing 

operations prior to commencing a drug/alcohol programs is different that not 

doing operations during a period of shutdown when the agency sought a 

violation and persisted at all costs to the taxpayer in that violation. In the Everson 

case a program was mandated to be started 60 days after approval of the 

program prior to commencing operations which apparently was not done. On 

inspection of his operations specifications no drug program was in place. The case 

was still dismissed. 

The commonality between the Everson case and MRHs case is that no 

operations were being done during the relevant period. Therefore, no presumed 

risk was presented to the public. The primary premise that initiated the violation 

was that Mr Baker was not on any program. MRH did have a drug program and 

implemented that program for those not on an approved program and in 

accordance to the operation specification and maintenance inspector's 

^ k knowledge, advice and in good faith. 
Regulation 135.241 makes reference to Flight Crewmembers requirements 

pertaining to operations (emphasis added) under this part. Again MRH was not 

doing operations as agreed to by the agency. 

Regulation 135.255 (before it was removed along with 135.251) refers to 

the certificate holder "and" operator. The use of the conjunctive "and" indicates 

that the regulation only applies if a company is not just a certificate holder but 

also on operator, which is one performing operations or performing part 135 flights. 

In accordance with the Everson case - one may not be cited or liable for 

alleged operations 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 during the relevant period of the violation, 

the citation must be dismissed. 

Furthermore, due to confirmed inconsistency, contradictions, confusion 

and complexity of these drug/alcohol regulations parts 135.251 and 135.255, with 

its reference to the appendices, they have been "Removed and Reserved 

effective July 13, 2009" by the FAA Rule makers. 

'FAA is working on a major revision of its drug and 

alcohol testing regulations. Given the complexity of that 

revision and the time it will take to complete the 

rulemaking process, the FAA has concluded that in the 

interim it makes sense to pull the existing regulations 

together in one place'. 
As is common law and in accordance with standard practices in 

Administrative Law 

"In the interpretation of ttie language of regulations, 

wtiere doubt exists as to tt)e intent of the nneaning of the 

language written and enacted by a governing body, the 

language shall be interpreted in favor of the Party and 

against any iniplied extension of a restriction". 

Of additional note is that the Complainants have taken the egregious and 

wanton course of action to pursue a violation for a regulation that was removed 

and rescinded in its entirety one year before the Complainants submitted their 

complaint (emphasis added) with lack of candor to the tribunal in that regard. 

These regulations remain a moving target, not property disclosed, scattered 

at different locations, not clearly interpretable, can not be understood by 

reasonable persons and in this case were not even known by MRHs FAA 

inspectors, the local FSDO or by FAA official Vincent Roots during the prior 

drug/alcohol audit of MRH, and more recently identified problematic by the FAA 

Rule makers (emphasis added), who are rewriting the regulation, thereby holding 

MRH to a double standard and a higher standard than its own FAA officials. 
2. MR. BAKER IS NOT AND HAS NEVER BEEN AN EMPLOYEE OF 

RESPONDENT- MOONLIGHTER. 

Connplainants cited in their briefs that part 121, appendix I allowed 

ennployers to use individuals to perform safety sensitive functions while 

being included in the drug program of another employer, changed "July 

13, 2009 when appendices I and J were re-codified"(emphasis added). 

The relative violation period therefore allowed use of individuals on a 

primary employers program (strict proof to the contrary required at trial). 

The primary premise for the violations of this case rests on the assumption 

that Mr. Baker A&P was not on a drug/alcohol testing program when performing 

safety sensitive functions on the MRH aircraft. Mr. Baker was and always has 

been a moonlighter, free lancer for the work he did on MRHs aircraft that 

occurred 1 day out of each 2 year period. Mr. Baker was not an employee of 

MRH. He did not work regularly for MRH, he did not receive regular paychecks, he 

was not provided health insurance, he was not under the control of MRH or how 

the work was to be done, rather worked independently on his own accord, not 

under the direct contra) of MRH as is the common law test. He was not subject to 

disciplinar/ action. He was not under any kind of contract. 

Mr. Baker was employed full-time by his primary employer, national 

company Air Methods who provided him a weekly paycheck and worked 40 

' Complainants Brief page 2^2 
hours a week and received health care benefits. He was always on a random 

drug/alcohol testing program without interruption by that primary employer and 

never tested positive. 

All pertinent alleged violations, particularly part 121 appendices I and J 

pertain only to "employees" of a company, which Mr. Baker was not and does not 

include or mention provisions or exclusions for non-contract, free lance or 

moonlighters. As such, the citation issued must be rendered invalid and dismissed. 

3. REDACTION AND SPOLIATION OF THE ENFORCEMENT 

INVESTIGATIVE REPORT. 

On inspection of the EIR documents, there was further evidence of 

withheld information that was requested and not disclosed eariier. 

Complainants did not describe in detail the methods used or specific regulations 

pertaining to specific reference sections that were corrupted. Complainants 

describe techniques in an evavsive, elusive, vogue manner and in generalities. 

The Complainants failed to follow statute as described in § 552. Public 

information; agency rules, opinions, orders, records, and proceedings section 

(a) which states: 

(2) Each agency, in accordance with published rules, 

shall make available for public inspection and 

copying— 

(A) final opinions, including concurring and dissenting 

opinions, as well as orders, made in the adjudication of 

cases: 

6-
(B) those statements of policy and interpretations which 

liave been adopted by the agency and are not 

published in the Federal Register; 

(C) administrative staff manuals and instructions to staff 

that affect a member of the public; 

(D) copies of all records, regardless of form or format, 

which have been released to any person under 

paragraph (3) and which, because of the nature of their 

subject matter, the agency determines have become 

or are likely to become the subject of subsequent 

requests for substantially the same records; and 

(E) a general index of the records referred to under 

subparagraph (D); 

The complainants remain non-compliant to the order of March 25, 2011 

and therefore should be held in contempt. 

4. FINANCIAL PENALTY NOT WARRANTED 

On April 30, 2011, Ms Ponto confirmed receipt of MRHs schedule C's 

2007-09, Schedules L,M,N as requested and as ordered by Judge Yoder. Mr 

Raley confirmed the financial losses and on May 10, 2011, proposed the one 

and only settlement offer by the agency that dismissed all financial penalties 

based on the validated financial losses. 

Habitually through this litigation, Complainants change their positions, 

have been legally inconsistent and willing to alter whatever needed for the 

tumbling needs of the moment. Mr Raley now changes his position^ claiming 

that the financials for MRH are limited which might demonstrate an inability to 

pay the proposed penalty but goes on to describe the Group IV sanctions 

Complainants Pre-Hearing Brief page 17, ^ 2. 
amounts, that assumes the sanctioned company does not have losses. 

During the pre-hearing conference, Ms Ponto claimed she was not aware 

MRH was a Limited Liability Corporation despite the LLC was on almost all 

documents (approximately 60 + submitted documents) and had to be reminded 

by Judge Yoder that M&R is a Limited Liability Corporation wherein the owners of 

this LLC has the liability protection of a corporation. A principle cannot be held 

personally liable for a debt. Therefore, all information clearly documenting 

company losses has been provided. This information serves to further confirm the 

lack of operation, not having performed any flights and having no income during 

and after the alleged violation period. 

6. FAILURE TO SEHLE THE CASE 

On March 25, 2011 a telephone Pre-Hearing conference occurred 

before the Honorable Judge Yoder when most of the matters were discussed. 

Ms Ponto an unlicensed attorney and Ms Dominik, her supervisor was present, 

representing the FAA despite never entering their entry of appearance in this 

case. It became apparent that Ms Ponto did not read the docket information 

including the ongoing financial losses of MRH that were also sent directly to her 

by first class mail, by fax and to the docket, admitted to such and did not 

consider that MRH was not operational during the violation period as well as 

many other factors. The Honorable Judge Yoder affirmed that this case was 

"one of the least reasonable cases he had seen in his 35 years of being a judge" 

- 8 -
• 

and firmly advised settlement. 

Ms Ponto then recused herself from the case and Charies Raley entered his 

appearance. On May 10, 2011, Mr Raley came forth as one in a tag team of 4 

agency attorneys, with the one and only settlement offer by the agency that 

dismissed all financial penalties based on the confirmed financial losses, if the 

respondent would agree to the flawed violation theory with its procedural morass 

be entered into the record. Therefore, all information clearly documenting 

company losses has been provided. This information further serves to confirm the 

lack of operation and income during and after the alleged violation period. 

Ms Raley would not agree to completely dismiss the cose in its entirety in good 

faith but willing to proceed to hearing despite the ongoing costs to the agency 

and taxpayers and squandering of judicial resources at time of unprecedented 

governmental deficits. 

Complainant's needless persistence and conduct in this matter has been 

unreasonable and outrageous and exceeds the bounds tolerated by decent 

society and has been done willfully, maliciously and deliberately with the intent to 

cause respondent financial damages, severe harassment, mental and emotional 

pain, distress, and anguish and loss of enjoyment of life. Complainants actions 

were done with reckless indifference to the likelihood that such behavior would 

cause such severe emotional distress, affect his practice and care of his cardiac 

patients, further putting those patients at risk and with utter disregard for the 
consequences of such actions. Their action also delayed and tortiously interfered 

with his evolving into that business. 

This case represents malicious, frivolous and indiscretory prosecution, 

procedural overreaching. The regulation format, changes, legal inconsistency 

and final dedaction 1 year before the complaint was filed, only encourages 

violation entrapment, confusion and non-compliance. It is antithesis to the policy 

of the FAA for full disclosure, teaching, information distribution, mutual and clear 

understanding and compliance in following evidence based concepts in the spirit 

of the public well being and safety. 

7. THE CITATION MUST BE DISMISSED BY VIRTUE OF THE 

STALE COMPLAINT RULE 

On July 28, 2010, Respondent was served with a Notice of Proposed Civil 

Penalty, citing a potential fine of $5400 (Fifty Four Hundred Dollars) from Laura 

Ponto for a violation that first occurred on November 2, 2007; 8 months passed 

the 2 year-Stale Complaint Rule -Statue of Limitations. After Respondent 

brought up the topic of the statute of limitations. Complainant quickly changed 

the initial complaint violation using a starting date to the later July 24, 2008, so 

that the violation appeared to have been entered just one day before 

(emphasis added) the 2 year deadline. This does not change the fact that the 

initial dates cited and therefore the starting date for the complaint on the 

violation was November 2, 2007, but the 2 eariier dates had to be dedacted, 

retrospectively in order for the complaint to come within the statute of limitations 

-10 -
by one day. 

On October 25, 2010, the Final Notice of Proposed Civil Penalty cited the 

November 2007 date (2 years, 8 months later) as the first alleged violation as did 

the subsequent complaint on November 19, 2010. 

On December 13, 2010, the complaint was then amended and served 

to respondent, this time changing the violation dates so that they would appear 

to fall within the 2 year statute of limitations, using only the latest date of July 24, 

2008 and lowering the fine amount to $4400. 

Due to the constant re-crafting of the complaint to fit the tumbling 

needs of the moment, respondent filed a Motion for Protective Order (February 

6, 2011) requesting to stabilize the complaint or render it moot. This motion in 

addition was ignored and circumvented by Complainants yet another violation 

of § Rule 13.218(d). 

CONCLUSION 

For all of the foregoing reasons Respondent respectfully requests the 

citation be immediately DISMISSED. 

Respectfully Submitted, 

Michael B. Selig, MD, FACC, CFI 

". ^'^'l. 

Date -<^<^ ^ 1 

c: 

Congressman Charies Dent 

Senator Pot Toomey 

11 
U.S. DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

Charles Raley, Cynthia Dominik, Laura Ponto, 

Peter Lynch, Lafonya Williams 

Complainants 

M & R Helicopters, LLC. 

Respondent 

Honorable Judge Ronnie Yodei 

Docicet: 2010-1211 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that I have this day served the foregoing entrie(s): 

RESPONDENT'S REPLY TO COMPLAINANTS BRIEF 

upon all parties of record in this proceeding, in accordance with the requirements of Rule 29 

pursuant to 28 U. S. C. § 1746 . 

Service by first-class mail, postage prepaid, addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Wilbur Wright Avenue-Suite 2W1000 

Washington, D.C. 20591 

Att: Hearing Docket Clerk, AGC-430 

,^^AX202 493 5142 

Charies Raley 

Enforcement Division/AGC-300 

Office of the Chief Counsel 

FAA 

800 Independence Avenue, SW 

Washington, DC 20591 

,,^A X 202 267 5106 

The Honorable Ronnie A. Yoder 

US Department of Transportation 

Office of Hearings, M-20, Room El 2-320 

1200 New Jersey Avenue. S.E. 

Washington, DC 20590 

f^^^ky^ 202 366 7536 

By:_ t^% 

Michael B. Selig, MD, FACC. 

2816 Orefield Road 

Allentown, Pa. 18104 

610 360 3953 

Date: 

• 
Michael B. Selig, MD, FACC, CFI-H 

2816 Orefield Road 

Allentown, PA. 18104 

June 3,2011 

Senator Pat Toomey 

1150 S.Cedar Crest Blvd 

Suite 101 

Allentown, PA 18103 

Phone:(610)434-1444 

Fax:(610)434-1844 

Case Docket Number: 2010-1211 www.regulations.gov 

Dear Mr Toomey: 

I live within your district and I am writing to you for your assistance and intervention. I 

have a part time operated and piloted part 135 Helicopter Air Charter in addition to being 

a licensed cardiologist at Lehigh Valley Hospital Network for the last 23 years. 

I am attaching a Brief and reply to Complainant's Brief that I filed into the docket that 

summarizes the details of the issues that I have encountered with the Federal Aviation 

Administration. I have represented myself pro-se and consider this case malicious 

prosecutorial profiling that is over reaching at the tax payers' expense. It is hard to 

imagine that the government would spend more than a fine for a non-meritorious and 

flawed case when Washington is facing an unprecedented deficit. 

As required by Public Law 93-579, the Privacy Act, I hereby request and 

authorize for you to intercede on my behalf, including the right to review all appropriated 

documentation that you or your staff deems necessary in connection with the application 

for assistance or any other action I have pending with the FAA. I understand that any 

documents I provide to you or your staff may be copied and forwarded to officials of the 

FAA for review. I understand that all Federal agencies are allowed a minimum of 30 days 

to respond to congressional inquiries. 

Thank you. 

Yours Sincerely: 

fVlk^L ^ 

Michael B. Selig, MD, FACC, CFI-H 
Michael B. Selig, MD, FACC, CFI-H 

2816 Orefield Road 

Allentown, PA. 18104 

June 3, 2011 

Office of Congressman Charlie Dent 

C/0 Casework 

3900 Hamilton Boulevard 

Suite 207 

Allentown, PA, 18103 

Case Docket Number: 2010-1211 www.regulations.gov 

Dear Mr Dent: 

I live within your district and I am writing to you to for assistance. I have a part 

time operated and piloted FAA part 135 Helicopter Air Charter in addition to being a 

licensed cardiologist. In fact, we met at Lehigh Valley Hospital- Muhlenberg at a 

luncheon several years back. 

I am attaching a Brief and reply to the Complainants Brief that I filed in federal 

court that summarizes the details of the issues that I have encountered with the Federal 

Aviation Administration attorneys. I have represented myself pro-se and consider this 

case malicious prosecutorial profiling that is over reaching at the tax payers' expense. It 

is hard to imagine that the government would spend more than a fine for a nonmeritorious and flawed case when Washington is facing an unprecedented deficit. 

As required by Public Law 93-579, the Privacy Act, I hereby request and 

authorize Congressman Dent to intercede on my behalf, including the right to review all 

appropriated documentation that he or his staff deems necessary in connection with the 

application for assistance or any other action 1 have pending with the agency named 

below. I understand that any documents I provide to Congressman Dent or his staff may 

be copied and forwarded to officials of the agency listed below for review. I imderstand 

that all Federal agencies are allowed a minimum of 30 days to respond to congressional 

inquiries. 

Thank you. 

Yours Sincerely: 

Michael B. Selig, MD, FACC, CFI-H 

•