04/10/2012 8:45AM FAX

Michael Selig, MD, FACC, CFI-H 2816 Orefield Road Allentown, PA. 18104 April 10, 20i2 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, D.C.

FederalAviation Administration Complainants 

### v. M & R Helicopters, LLC. Respondent # 2010-1211

RESPONDENT'S POST TRIAL BRIEF TO DISMISS COMPLAINT
I. INTRODUCTION The subject citation arose as a hypothetical and overreaching, indiscriminantviolation ofPart 121, I and J drug and alcohol abatement**~0001/0025**

regulations that were poorly defined, have subsequentlybeen changed 2 times and were relocated to various links on unreferenced websites. These regulations were never listed or signed offafter they were changed in the operation specifications or compliance statements by Respondent. The operation specifications or compliance statements thatreferenced these - 1 -04/10/2012 8:45AM FAX li!J0002/0025

regulations were never updated by Flight District Standards. There was never any notification process by the agency to confirm such changes ever occurred, contrary to the procedures ofaU other parts ofthe compliance statement and operational specifications. Moreover, there was no reference in the operation specifications to the location ofthe regulation or methods ofcompliance for regulations that were blindly changed. The initiation ofthe subject citation was based solely on the assumption thatA/P mechanic Edward Baker was 

### not on any approved Drug/Alcohol abatement program when he performed a rotor tract and balance check, without making any changes according to Inspector Statement lOP 9 

### recotd (Exhibit R-5). This was soon disproved when itwas shown that Mr. Baker was always and continuously on a program by his primary full time employer Air Methods Corporation. It was asserted that Mr. Baker was considered an employee ofMR Helicopters even though he was employed full time for Air Methods Corporation and only worked free lance, 

### one 

### day every 2 years, requiring him to be on a drug/alcohol programfor Air Methods and MR Helicopters. The hypothetical and far reaching subject citation was aggressively pursued despite the fact that MR Helicopter's operation was non-functioning, non-operational, did no part 135 flights, operated ata loss, incurred a name change, closed its bank accounts and was unauthorized to perform part 135 flights without a certified part 135 pilot, during the cited violation period and has not since then. Nonetheless, the citation was aggressively pursued despite

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its operation specifications or compliance statements were incomplete, invalid and beingrevised.

ll. STATEMENT OF FACTS MR Helicopters, LLC, (MRH) onJuly 21, 2009, was audited by FAA Officers, LatonyaWilliams and Kimmy Poon for the initial scheduled inspection at thejoint office ofLifeline Cardiology and MRH helicopters, LLC. On July 23, 2009, FAA Officer, LatonyaWilliams returned alone for further inspection of the MRH drug consortiumrecords. Ms. Williams's behavior during that nonaccompanied visit was offensive and unprofessional throughout the inspection, and a complaint was filed in that regard. Ms. William's took an excessive amountoftime in doing her inspection, over 3 hours, thereby delaying respondents patient careresponsibilities. Ms. Williams insisted on a spur of the moment letter written to her, addressing several matters. Ms. Williams postulated thatmechanic Edward Baker was not covered under any FAA-Mandated drug testing program and she refused to deviate from that false theory, despite later noting otherwise. Itwas proven Mr. Baker at all times was subjectto a random drug and alcohol testing program and
neverhad a history ofa positive testing resultin the over 30+years of performing safety sensitive functions as a pilot and mechanic. Ms. Williams also disclosed that there was a regulation change that occurred in Febma.ry 2004, requiring all A & P mechanics to be on a company specific drug and alcohol program. Ms Williams did not provide the specific

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details referencing this policy change or training or compliance procedures. It
was admitted that no notification system was putinto place, similar to FAA flight operations, maintenance and avionic protocols. MRH was not notified or aware ofthis policy change and even more unsettling, the FAA maintenance inspector Gerry Henninger for MRH, also was not aware and was therefore unable to inform MRH ofthis change during the 5 year plus period that he frequently inspected the MRH aircraft, located at Lehigh Valley International Airport (ABE) and across the street from the Allentown Flight Standards District Office (FSDO). In fact none ofthe management personnel at the Allentown FSDO were informed ofthe regulation change during that 5 year period as well. Ofparticular concern, in April of2004, 2 months after the regulation changed, MRH underwent a Drug and Alcohol program inspection by FAA drug '· abatement officer, Vincent Roots and no significant discrepancies were cited (Exhibit R-2). Mr. Roots did not inform MRH that the regulation concerning all mechanics being on the specific companies drug program had changed. Itwas apparentthatnot all the FAA drug abatement personnel were informed oftheir
own 

### in houseregulation change, Mr. Roots did not mention or provide instruction or training regarding referencing regulations that were not readily apparent or written in the compliance statement or operation specifications,
nor recommended compliance procedures or ofa notification system thatwas in place, similar to FAA operations and maintenanceprotocols. Respondent explained to Ms. Williams that MRH was unable to and

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unauthorized to perform part 135 operations sinceJune 2007 (Exh,ibit R-6), due to human factors and extenuatingcircumstances impacting the single pilot operator (high conflict, protracted divorce, liabilityissues, etc.) eitherwas unavailable to take his flight exam or the inspector was unavailable to perform
a flight exam (medical leave). MRH had since also ceased operatingunder the
name (Exhibit R-7) and the certificate number thereby rendering the complaint moot. All financials were terminatedunder the MRH name. OnAugust 14, 2009, Ms. Williams's letter informed MRH that the above violations were under investigation. On July 23, 2010, Respondent was served with a Notice ofProposed Civil Penalty, citing a potential fine of$5400 (Fifty Four Hundred Dollars) from Laura Ponto. On August 6, 2010, Respondent sent a letter to Ms. Ponto detailing the statements offact, evidence and request for an informal hearing. On October 1, 2010, an informal telephone hearing was held before field manager Amy Frankel, attorneys Charles Raley and Ms. Ponto On October 21, 2010, respondentwas served with the Final Notice of Proposed Civil Penalty for a fine of$5400 and incomplete and redacted copies ofthe EnforcementInvestigation Report. It did not include updated information requested by FAA inspector Chet Stevenson, for the confirmation of employmentbyAir Methods Corp and thatMr. Baker was continually enrolled in a drug and alcohol program (ExhibitA-9). The complaint was amended twice. On December 10, 2010, the fine
was reduced to $4400.

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On March 25, 2011, a pre-trial teleconference was held with Chief Administrative Judge Ronnie Yoder, when the parties were advised to settle the
case. Terms to agreement could not be mutually met. On January 26-27, 2012, before the Honorable Judge Goodwin a trial
was conducted.

III. ARGUMENT 1. MRH AT ALL TlMES RELEVANT WAS NOT AUTHORIZED TO CONDUCT PART 135 OPERATIONS UNDER ITS CERTIFICATE. Complainants pleated theircase to the contrarywhich was manifestly incorrect and erred. In order to be authorized to conduct operations several conditions mustbe met. First, the operational specifications and compliance statements required updating, currentwith confirmatory signatures. This was not the case with MRH, particularlywithregard to the Drugprogramreferences. The last signed off statement was January 2004. The company alsounderwent a corporation and name change makingthe operation specifications invalid (Exhibit R-7)
. The FDSO instructed Respondent to do no part 135 flights until the Op Specs wereundated to reflect changes.
In order to conductpart 135 operations, the pilotmustcomplywiththe requirements inthe regulations, have theexperience level, undergo yearly recurrency training as well as undergo a yearly oral and flight examination byan

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FAA examiner. None ofthis occurredorwas in place; therefore itwas impossible for MRH to be authorized to conduct part 135 operations, sinceJune of2007. The only reference cited by Complainants to suggest thatMRH was operational was a website listingonly that MRH had a certificate number.
2. MRH HAS N'OT BEEN' IN OPERATION SINCE JVNE 2007 RENDERING THE CITATION MOOT

Complainants erred by asserting that exposure and liability for a violation is warranted based solely on possessing operating specifications even

### ifunder the wrong name and a listed certificate number. Howcould the operation be active if itwas unable to carryoutoperations because there wasno qualified pilot? Respondentexercised soundjudgment in the bestinterests and safety ofthe public under part 119.69 to withdraw all part 135 operations due to human factors beyond his control (protracted divorce). Respondent also could not maintainhis otherfunctions in the company, as Director ofOperations and Maintenance Coordinator forwhich he bearsall liabilities. Why should the Respondent be punished for exercising goodjudgment? Judge Yoder made reference to the current case law regardingviolations to operators not engaged in operations: In the MatterofDavidE. Everson d/b/a NorthValley Helicopters, Inc., FAA Order No. 2004-S, the court ruled that a violation is invalid based purely on possession ofa certificate that operations needed to be conducted in orderfor a violation to have merit.

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Complainants asserted that notperformingoperations prior to commencinga drug/alcohol program is different than not conducting operations during a period of shutdownwhen the agency sought a violation, when the operation did have an active drugprogram. In the Everson case, a programwas mandated to be started 60 days after approval ofthe program prior to commencing operations which was not done. On inspection ofhis operations specifications no drugprogram was in place. The case was stilldismissed. The commonality between the Everson case and MRH's caseis thatno flights or operations were conducted during the relevantperiod. Therefore, no risk or harm was presented to the public. The primary premise that initiated the violation was that Mr. Bakerwas not on any program. MRH did havea drug programandimplemented thatprogram for those not on anyapproved prdgtani and in accordance to the operation specifications sign offdate ofJanuary 2004 priorto the regulation change

# m:dmaintenance inspector's knowledge, advice and in good faith. Flight Standards never updated the operation specifications to reflect subsequentchanges. Regulation 135.241 makesreference to Flight Crewmembers requirements pertainingto operations (emphasis added) under this part. Again MRH was not doing operations as confirmed to by the agency. Regulation 135.255 (before itwas removed alongwith 135.251) referred to the certificateholder "and" operator. 'rhe use ofthe conjunctive "and" indicates thatthe regulation only applies ifa company isnotjusta certificate holder butalso an operator, which'is one performingoperations and performing
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part 135flights. In accordancewith the Everson case which remains the Litmus testfor these matters
- one maynot be cited for violations occurring during a period in time whenno operationsactually occurred. Since MRH was not in operation, did not have a pilot and did notfly anypart 135 flights during the relevant period ofthe violation, the citation must be dismissed. Contemporary recent case law precedence (June 13, 2011) further supports this concept, in the Matter of: HEUCOPTER FLITE, INC. FAA Order No. 2011-6:
In this case section, 135.25(b) requires that a certificate holder have exclusive use ofat least one aircraft that meets the requirements for at least
one kind ofoperation authorized in its operations specifications. The FAA did prove that Helicopter Flite did 

### not have exclusive use ofthe only aircraft listed
on its operations specifications between February 12, 2008, and September 15, 2008, but it did no flights, conducted no operations. The Honorable Judge further stated: "HOWEVER, IT MAKES NO SENSE TO ENFORCE TmS REQUIREMENT BY IMPOSING A CIVIL PENALTY UNLESS THERE IS EVIDENCE THAT THE CERTIFICATE HOLDER CONTINUED TO OPERATE DURING THE TIME PERIOD THAT IT DID NOT HAVE EXCLUSIVE USE OF AT LEAST ONE AIRCRAFT" {SIC}.

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For the foregoing reasons, the Administrative LawJudge's decision was reversed, and no civil penalty was assessed. The Complainants did not present any case law precedent at trial or otherwise thatwould contradict the above premise. The only reference given by Complainantwas a hypothetical interpretation ofa case that did not go to trial concerning a company that had performed maintenance on an aircraft by a mechanic who was not on any drug abatement program and in regard to a company that did not have its own drug program in place. In the case ofMRH, both factors were different and many otherfactors that would not applyto the Complainants stated hypothetical. Mr. Bakerwas always on a drug program and MRH always had its own drug program for those not on a drug program.

3. REGULATIONS WERE :NOT PROPERLY LISTED AND NOTICE OF REGULATORY CHANGES NEVER PROVIDED.

Regulations 14 C.F.R. part 121, Appendix I and J and 49 C.F.R. part 40 relied upon by Complainantwere not clea.rly referenced or disclosed 

### in the signed operation specifications or compliance statements making these regulations impossible for Respondents compliance since theywere hidden, omitted and concealed. It is not proper orreasonable to require an operator to uphold a regulation, when that regulation has been made difficult to find, the full text is not clea.rly written, and had not been incorporated into the compliance statement, operation specifications.

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Itwas established during examination ofMs. Lozada, the central manager ofthe DrugAbatement program, that the part ofthe Op Specs section addressing Drug Abatement parameters A449 (ExhibitA-2) was signed offin February 2004 (Transcript Page 115, line 10), prior to the changes to Appendix I and J that partially initiated the proposed violation. There was ongoing referenceby Ms. Lozada to a remote website, the Federal Registry and also that the DrugAbatement program had their own website (Tr. 122-20) which was confusing in her testimony. Ms Lozada stated it was the Respondents responsibility to check blindly 

### ifthere were questions. It was pursued at trial that ifyour inspectors stated and confirmed you were in compliance repeatedly foryears andyou were not notified otherwise, whywould there be a question to seek additional information (Tr. 124-20)? Ms. Lozada stated thatthe website contained these revised regulations, but no such reference was ever listed in the Op Specs (Tr. 116-6). Ms. Lozada
was questioned as to when this website started and when this dissemination of the regulations in this matter first began, she was not sure. Ms Frankel an aviation safety specialistin the office ofauditand evaluation also did not know when the DrugAbatementwebsite was established (Tr. 194-21). Respondent
was able to establish that the Federal Website was first started in 2007, in reference to Order 8900.1 (Exhibit R-1) (Tr. 122-11) and required abouta year to populate that website with data, which brought the time-frame right up to the proposed violation ofMr. Bakerperforming a simple check ofthe rotor track and balance onJuly 24, 2008, triggering this action.

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It was established that it was the responsibility ofFlight Districts Standards Office to update those Op Specs, not that ofthe operator. This was not done, therefore the Op Specs were invalid in addressing the new regulation, only contained the olderparameters which Respondentwas always compliant with (Tr. 139-8). There was never any notification ofthe regulation change. It was established during examination ofMs. Frankel that she did not know what the term methods ofcompliance even meant and she could not define the term which is one ofthe main matters before the court (Tr. 273-2). Respondent asked Ms. Lozadaand Ms. Frankel where itwas stated or written what was needed to become complaint to the new regulation, they could not. Neither could state where it was written, at what interval to blindly seek the regulations to figure outifa regulation had changedwithout any notification process in place to determine this (Tr. 145-14). Itwas left asa random unknown method and interval, therein rendering it impossible for an operator to ever be fully compliant and the reason for the subsequent litany ofchanges bythe agency to rectifY those problems. Ms. Frankelwas asked what was the grace period for which to become compliant with the 2004 regulation change, was it five years? Her answer was that she was not aware ofa grace period or a time interval to become complaint with those changes (Tr. 279-8). Without a Notification process in place, the agency expected the operatorto review hundreds ofpages oftext on remote websites that was not referenced in the Op Specs to focus, find, comprehend, compare and then

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determine ifa random change in a single isolated regulation had occurred, is
an unreasonable burden. When Ms. Frankel was asked how to implement this random exercise, her onlyresponse was, itjustwas the operator's responsibility (Tr. 308-13). It is not stated where the exact source location ofthese hidden (fine print) regulations were located or 

### atwhat time intervals to carry out these tedious hit or miss search exercises all prone to misinterpretation and error. Therefore, itis impossible to ever be completely compliant at any pointin time, ifa regulation changed or update occurred, withoutnotification, training or public education, as is clearly evidenced by the history ofthe FAA's own officers in regard to these regulations. Ifa regulation is material and substantiates a penalty, then it would also follow that any "material" changes to an FAA regulation would warrant reasonable methods ofcommunication and notice for a material change. Due to the voluminous depth ofthe Federal Register itwould be impossible for the general public to monitor immaterial changes. Therefore, penalizing the Respondent for an immaterial change that modified operation requirements is procedurallyinconsistentwith the forthright notification procedure that is in place for all other chapters in the operation specifications, which uses an effective, personalized, one on one approach byknown and established FAA inspectors in the sprit ofcompliance and safety. Ms. Lozada confirmed that regulation changes occurred on February 12, 2004, yet the operation specifications A449 were confirmed and signed off

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on February 2, 2004 (Exhibit A-2). MRH was not informed ofthe regulation changeby Mr. Roots in April of2004, when MRH underwent its first FAA drug/alcohol audit. MRH was not informed during 5 years ofFAA operations inspections by FrankAlotta, was not informed during frequent maintenance inspections by FAA inspector Gerry Henninger. Mr. Henninger did require a copyofMr. Baker's AP license and evidence ofMr. Baker's employment Drug program by Helicopters Inc. (Exhibit R-3) before any work was performed on the aircraft, butdid not state or require Mr. Baker to be on MRH's always existent drugprogram. The Allentown FSDO is located across the street and its**officer'~** inspected frequently during their daily activities at the Lehigh Valley InternationalAirport (ABE) where the aircraft has been hangared for over 12 years, never to find MRH in violation ofFAA regulations. The manager ofthe Allentown FSDO, Mr. Wadsworth, also was unaware ofthe policychange. Therefore the FAA's officers and its own drug abatement officer was also not informed ofthe regulation changejust as MRH was not. Complainants attestthat changes to the regulations were promulgated and amended by notice in accordance the Administrative Procedures Act or through the Federal Registry Publication ofFinal Rule. Ifthis is so. then why
were FAA officers and all others also unaware ofthe changes? (Emphasis supplied). Assuming arguendo, even ifall the otherfatal defects were notin place, this scenario ofno FAA official knowing ofthe regulation changes, only

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encouraged the potential violation and unreasonable to hold the Respondent to
a 

### higher standard and a double standard than their own FAA officials or drug inspection officers who themselves did not know or inform MRH ofthe regulation change or send some form ofnotification. 14 C.F.R. part 121, Appendix I and J and 49 C.F.R. part 40 were not disclosed and no reasonable notification procedure was in place to inform any operator ofthis change, contrary to the routine protocol followed by all other operation specification chapters, which included a regular notification procedure, 

### updated and re-written operation specification revisions, 

### phyiJlcally replaced pages and 

### subsequent formal re-slgnoffand confirmation ofthe new pages that the operatoris aware and agrees. It is therefore not proper orreasonable to hold MRH responsible for changes thatno one was unaware of, not formally or otherwise notified of, 

### or signed offon. Regulations 

### 8 135.251 and 1315.255 as written in the compliance statement does not inherently state that MRH must directly test each employee who performs a safety sensitive function rather states empirically that 

### any person conducting safetysensitive functions must be coveredby anli'AA approved drugand alcohol testing program. These individuals referred to, did comply with drug and alcohol testing regulations by their full time employers. Itwas discovered that the 2 regulations thatthe agencywas violating the Respondent for: §135.251 and §135.255, were so inconsistent, contradictory and problematic that the FAA rule makers decided to 

### remove.

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### reserve, revise, relocate effective July 13, 2009" by the FAA Rule makers perhaps unbeknownstby the complainants (ExhibitA-12): 

### 'FAA is working on a major revision ofits 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 sen111e to pull the existing regulationstogetherin one place'[SIC],
Access to that FAA website months ago stated 

### Removed and I4JOO 18/0025



### Reserved, nothingmore (Exhibit R-8). The now working link shows therecodification of§135.251 to §120.35 and§ 135.255 to§ 120.39, adding new meaningto the Moving Target and Shiftingnature ofthese regulations. Now the compliance with this regulation even appears dependent on whether or not a computer shifting and variably software hypertextwebsite link is operating correctly (emphasis supplied), As is common law and in accordancewith standardpractices in Administrative Law: 

### "In the 

### interpretation of the language of regulations, where doubt exists 

### as to the intent of the meaning ofthe language written and enacted 

### by a governing body, the language shall be interpreted infavor ofthe Party and against any impliedextensionof a restriction".
The Complainants took an aggressive course of action to pursue at best a theoretical violation for a regulation that was removed and rescinded in its

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entirety one year before the Complainants submitted their complaint (emphasis supplied). These regulations remain a moving target, since theywere not adequately disclosed, scattered amongst different locations, uninterruptible,
can not be understood by reasonable persons and in this case were not even known by MRH's FAA inspectors, the local FSDO or by FAA official Vincent Roots during the prior drug/alcohol audit ofMRH (Exhibit R-2), and more recently identified problematic by the FAA Rule makers (emphasis added), who rewrote the regulation due to interpretation discrepancies, thereby holding MRH to a double standard and a higher standard than its own FAA officials. The reasons why the agency had to rewrite and relocate the subject regulations were discussed on page 1840 of (ExhibitA-11, Tr. 290-8) to claril'y regulatory language. To initiate fair prosecution, the regulations must first be un-obscured, be directly visible and contained within the compliance statement and operation specifications, have clearwording not referring to remote websites and confirmatory sign offby the operators, all elements not presentin this case. In 2011, identil'ying and confirming the problematic communication and notification system, the drug abatement program made further changes. The drug program now enacted a new compliance procedure by mailing to participants reguests for listed website interaction and dates for which compliance mustbe completed. In accordance to the "Doctrines ofEquitable Tolling" and Mutuality,
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the Respondent cannot be held libel for a changed regulation he was not informed ofor not able to discover until afterthe change occurred. This is the jurisprudence and reason why changed sections the Operation Specifications
are revised periodically and signed offby affecting partiesto confirm discovery ofthose changes. 4. DID THE ROTOR TRACK AND BALANCE CllECK FALL UNDER THE GUIDELINE OF A SERIOUS SAFETY ISSUE OR UNWILLINGNESS TO COMPLY WARRANTING THE PROPOSED VIOLATION FROM THE ONSET? The Compliance and EnforcementTracking system (CETS) clearly states that "Legal enforcement action includes circumstanceswhere serious safety issues are 

### involved or there is a pattern ofnoncompliance thatindicates an inabilityorunwillingness to complywith regulatoryrequirements"? 

### (http:

### II www

### .faa.gov

### IdocumentUbrarv/media/Order

### IFULL%209120.1Al.

### pd

A rotor track and balance checkwas performed onJuly 24, 2008 by Mr. Bakerwhenhewas onlyon the a primaryDrugprogram for Air Methods Corporation and a second drugprogram through the NationalGuard. He was not on MRH's specific program. The logbook entry clearly discloses that these rotor track and balance parameters were checked and 

### "all measurement found to 

### be within limits, no adJustments required" (SIC) (ExhibitA-4). No changes
or corrections were made to the rotortrack and balance and no weights were added, no actual servicewas performed, itwas purely a check or a reading and the system found to be well within specification.

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The Compliance and EnforcementTracking system (CETS) also cites that a letter ofcorrection (LOC) orwarningnotice (WN) is appropriatewhen there are no serious safetyissues orunwillingness to complywith regulations. In addition to the inquiry as to the serious safety concerns thatMs. Lozada (Tr. 157-12) had, she believed there were serious safety concernsjuston the basis that part 135 flights were flown. Butwhen asked 

### if she believed that part 135 flights were flown since thatrotor track and balance was checked, she then changedheranswer to 4! didn't say that". It was clearlyestablished from the flight logrecord that no part 135 operationswere performed since a yeareven before thatrotor track and balance checkwas performed andwhile the company was in moratorium. Furthermore, that same rotortrack and balance check was repeated by Mr. Baker afterhe wasplaced on MRH's own drugprogram. No flights were ever flown in the interim, therefore there were never any serious safetyissues. The second condition to commence enforcementprocedures isifan operatorwasunwilling to complywiththe regulations. When Ms. Lozadawas askedifMRH wasunwillingto comply, she stated "I believe so" (Tr. 158-17). It
was commented to Ms. Lozada, how could MRI-I have beenunwilling to comply when they did notknow ofthe regulation change andwas notinformed ofthe change. lt was confirmed that once MRH was aware, Mr. Bakerwas placed on theirexistingDrugprogram (Tr. 224-14) and Ms. Frankel also confirmed that statement (Tr. 313-4).

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The specific agency language states where 

### serioussafety issues involved. Sincetherewas no incident oraccident therewas no event and/or opportunity for any serious safetyissues to be involved, therefore the agency pursued a violation based on a purely speculative statement since there was no potential for
a serous safety issue and no flights were flown after the rotor track and balance
was checked, evenwithout making any changes or corrections. The Enforcement Regulations do notleave room or state that a violation should be issued based purelyon speculation. Ms. Frankel nonetheless claimed, there could have been a safety issue despite the aircraftwas notflown 135 from before the cited violation to the current (Tr. 310-10). Mr. Kim Barnette was asked ifduringramp or maintenance inspections if the agency maintenance inspectorhad a responsibilityto checkout the personnel workingon the aircraft, his answerwas thatwas notwithin this purview ('fr.340-10).

5. MR. BAKER IS NOT AND HAS NEVER BEEN AN EiMPLOYEE OF RESPONDENT- MOONLIGHTER.

Complainants cited that part 121, appendix I allowed employers to use individuals to perform safety sensitive functions while being included in the drug program ofanotheremployer, changed "July 13, 2009 when appendices I and J were re-codified"(emphasis added), The relative violation period therefore allowed use ofindividuals who were on a primary employer's drug program and

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therein MRH was in compliance. 'fhe primarypremise for the violations ofthis case rested on the assumption that Mr. BakerA&P was not on any drug/alcohol testing program when performing saiety sensitive functions on the MRH aircraft. Mr. Bakerwas and always has been a moonlighter, free lancer for the workhe did on MRHs aircraft that occurred 1 

### day outof each2 year period. Mr. Bakerwas not an employee ofMRH. He did notworkregularlyfor MRH, he did notreceive regularpaychecks, hewasnot provided health insurance, hewas notunder the control ofMRH orhowthe work was to be done, ratherworked independently on his own accord, not under the directcontrol of MRH as is the common law test. He was not subject to disciplinary action. He
was notunder anykind ofcontract. Mr. Bakerwas employed full-time by his primaryemployer, national companyAir Methods who provided him a weekly paycheck andworked 40 hours
a week and received health care benefits. He was always on a random drug/alcohol testing program without interruption by that primaryemployer and
nevertested positive. In addition Mr. Bakerwas on the 

### National Guard Drug/Alcohol program in his capacity as a pilot andAP. All pertinentalleged violations, particularlypart 121 appendices I and J pertain to "employees" ofa company, which Mr. Bakerwasnot and does not include ormention provisions orexclusions for non-contract, free lance or moonlighters. As such, the citation issued mustbe renderedinvalid and dismissed.

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When Ms. Ponto was asked byJudge Yoder where there was the requirement to have a contract between a company and a thb:d party, it
was responded to that pre-2004 none existed (Pretrial Transcriptpage 14, line 21). When asked byJudge Yoder asked 

### ifthere was a regulation change in appendix J to bar moonlighting after the amendment change in 2004, Ms. Ponto stated, she was not sure,
IS. FINANCIAL PENALTY NOT WARRANTED

AssumingArguendo, thatthere was fair cause to pursue the level of frivolous prosecution that has occurred in this case, a financial reward is not proper or reasonable for an LLC. that has only generated losses. On April 30, 2011, Ms. Ponto confirmed receipt ofMRH's schedule C's 2007-09, Schedules L, M, and N as requested and as ordered by Judge Yoder. Mr. Raley (who took over the case from Ms. Ponto) confirmed the financial losses, which demonstrated an inability to pay the proposed penalty. On May 10, 2011, Mr. Riley then proposed the one and only settlement offer by the agency based on the validated financial losses butwithout agreement to all terms. The 

### tax records also confirm the name and financial changes in early 2008. MRH is a Limited Liability Corporation wherein the owner ofthis LLC has the liability protection of

### a corporation. Aprinciple cannot be held

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personally liable for a debt. Therefore, all information clearly documenting company losses has been provided. This information serves to further confirm the lack ofoperation, having no income before, during and after the alleged violation period. IV. CONCLUSION The hypothetical, far reaching and frivolous subject citation was aggressively pursued despite the M:R Helicopter's operation was shut down, non-operational, was operating ata Joss, had changed names, had operation specifications and compliance statements that were invalid, incomplete being revised, updated, closed it's bank accounts and was unauthorized to perform part 135 flights also without a certified part 135 pilot, 1yearbefore, during the cited violation period and has not since then. The proposed violation did not involve a serious safety issue (checking a rotor track and balance without a change ofany kind), it did not involve an incident or accident, the aircraftwas not even flown 135 and the check was redone after Mr. Bakerwas on MRH's program. There was no unwillingness
once finally notified ofthe regulation change to place Mr. Baker on the company's drug program. Itwas impossible to be compliant with the regulation because the regulation had changed without notification ofany kind, there were no methods ofcompliance listed in the outdated Op Specs, the regulations were obfuscated, changed, moved and removed, reserved and re-codified.

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Common sense and case law precedent does not support this violation that has propagated and generated over a hundred pleadings to the docket,
over a 4 year period and has consumed court and agency recourses many times
over the proposed unwarranted and indiscriminate fine amount. The proposed hypothetical, frivilous violation including anyjudgmentis notwarranted therefore all claims must be immediately QUASHED, STRICKEN and DISl\USSED.

Respectfully Submitted, 

# :P\_\{rt Michael B. Selig, MD, FACC.

# ~

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### u.s.**Dltl>~RTMENT** OJ!' TRANSPORTATION

FederalAviation**~diDinlstration** Complainant v. M & R Helicopters, LLC. Respondent Honorable Judge Richard Goodwin Docket: 2010·1211

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I havethis day served the foregoing entrie(s): RESPONDENT'S POST TRIAL BRIEF TO DISMISS COMPLAINTli1J0025/0025

upon all parties ofrecord in this proceeding, inaccordance with the requirements ofRule 29 pursuantto 28 U. s. C. § 1746
. Service by Email and Fa,i Federal Aviation Administration 800 IndependenceAvenuo, SW Wilbur WrightAvenue-Suite 2Wl000**Wa~Shington,** D.C. 20591 Att: Hearing Docket Clerk, AGC-430 FAX 202 493 5142

Charles Raley Enforcement Division/AGC-300 Office ofthe ChiefCounsel FAA 800 Independence Avenue, SW Washington, DC 20591 FAX 202 267 5106 The Honorable Richard C. Goodwin US Department ofTransportation Office ofHearings, M-20, Room El2-320 1200 New Jersey Avenue. S.E. Washington, DC 20590 FAX 202 366 7536-notworking patricia.matthews@dot.gov leibowit2@dot.gov
By:_ Electronically signed MBS Michael B. Selig, MD, FACC. 2816 Orefield Road Allentown, Pa. 18104 

# l 610 360 3953 \, 

## ln Date: 4-10-2012

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