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. 

Federal Aviation 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, 

indiscriminant violation of Part 121, I and J drug and alcohol abatement 

~0001/0025 

regulations that were poorly defined, have subsequently been changed 2 times 

and were relocated to various links on unreferenced websites. These 

regulations were never listed or signed off after they were changed in the 

operation specifications or compliance statements by Respondent. The 

operation specifications or compliance statements that referenced these 

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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 of aU other parts of the compliance statement and 

operational specifications. Moreover, there was no reference in the operation 

specifications to the location of the regulation or methods of compliance for 

regulations that were blindly changed. 

The initiation of the subject citation was based solely on the assumption 

that A/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 it was 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 of MR 

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 program for 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 at a 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 being revised. 

ll. STATEMENT OF FACTS 

MR Helicopters, LLC, (MRH) on July 21, 2009, was audited by FAA 

Officers, Latonya Williams and Kimmy Poon for the initial scheduled inspection 

at the joint office of Lifeline Cardiology and MRH helicopters, LLC. On July 23, 

2009, FAA Officer, Latonya Williams returned alone for further inspection of 

the MRH drug consortium records. 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 

amount of time in doing her inspection, over 3 hours, thereby delaying 

respondents patient care responsibilities. Ms. Williams insisted on a spur of 

the moment letter written to her, addressing several matters. 

Ms. Williams postulated that mechanic 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. It was proven Mr. Baker 

at all times was subject to a random drug and alcohol testing program and 

never had a history of a positive testing result in 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 put into place, similar to FAA 

flight operations, maintenance and avionic protocols. MRH was not notified or 

aware of this 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 of this 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 of the management personnel at the 

Allentown FSDO were informed of the regulation change during that 5 year 

period as well. 

Of particular concern, in April of 2004, 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. It was 

apparent that not all the FAA drug abatement personnel were informed of their 

own in house regulation 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 of a notification system that was 

in place, similar to FAA operations and maintenance protocols. 

Respondent explained to Ms. Williams that MRH was unable to and 

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unauthorized to perform part 135 operations since June 2007 (Exh,ibit R-6), 

due to human factors and extenuating circumstances impacting the single pilot 

operator (high conflict, protracted divorce, liability issues, etc.) either was 

unavailable to take his flight exam or the inspector was unavailable to perform 

a flight exam (medical leave). MRH had since also ceased operating under the 

name (Exhibit R-7) and the certificate number thereby rendering the complaint 

moot. All financials were terminated under the MRH name. 

On August 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 of Proposed 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 of fact, 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, respondent was served with the Final Notice of 

Proposed Civil Penalty for a fine of $5400 and incomplete and redacted copies 

of the Enforcement Investigation Report. It did not include updated 

information requested by FAA inspector Chet Stevenson, for the confirmation of 

employment by Air Methods Corp and that Mr. Baker was continually enrolled 

in a drug and alcohol program (Exhibit A-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 their case to the contrary which was manifestly 

incorrect and erred. In order to be authorized to conduct operations several 

conditions must be met. First, the operational specifications and compliance 

statements required updating, current with confirmatory signatures. This was 

not the case with MRH, particularly with regard to the Drug program references. 

The last signed off statement was January 2004. The company also underwent a 

corporation and name change making the operation specifications invalid 

(Exhibit R-7) . The FDSO instructed Respondent to do no part 135 flights until 

the Op Specs were undated to reflect changes. 

In order to conduct part 135 operations, the pilot must comply with the 

requirements in the regulations, have the experience level, undergo yearly 

recurrency training as well as undergo a yearly oral and flight examination by an 

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FAA examiner. None of this occurred or was in place; therefore it was impossible 

for MRH to be authorized to conduct part 135 operations, since June of 2007. 

The only reference cited by Complainants to suggest that MRH was 

operational was a website listing only 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 if under the 

wrong name and a listed certificate number. How could the operation be active if 

it was unable to carry out operations because there was no qualified pilot? 

Respondent exercised sound judgment in 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 (protracted divorce). Respondent also could not 

maintain his other functions in the company, as Director of Operations and 

Maintenance Coordinator for which he bears all liabilities. Why should the 

Respondent be punished for exercising good judgment? 

Judge Yoder made reference to the current case law regarding violations 

to operators not engaged in operations: 

In the Matter of David E. Everson d/b/a North Valley Helicopters, 

Inc., FAA Order No. 2004-S, the court ruled that a violation is invalid based 

purely on possession of a certificate that operations needed to be conducted in 

order for a violation to have merit. 

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Complainants asserted that not performing operations prior to 

commencing a drug/ alcohol program is different than not conducting operations 

during a period of shutdown when the agency sought a violation, when the 

operation did have an active drug program. In the Everson case, a program was 

mandated to be started 60 days after approval of the program prior to 

commencing operations which 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 MRH's case is that no 

flights or operations were conducted during the relevant period. Therefore, no 

risk or harm 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 any approved prdgtani 

and in accordance to the operation specifications sign off date of January 2004 

prior to the regulation change m:d maintenance inspector's knowledge, advice 

and in good faith. Flight Standards never updated the operation specifications to 

reflect subsequent changes. 

Regulation 135.241 makes reference to Flight Crewmembers 

requirements pertaining to operations (emphasis added) under this part. Again 

MRH was not doing operations as confirmed to by the agency. 

Regulation 135.255 (before it was removed along with 135.251) referred 

to the certificate holder "and" operator. 'rhe 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 and performing 

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part 135 flights. 

In accordance with the Everson case which remains the Litmus test for 

these matters - one may not be cited for 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. 

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 of at least one aircraft that meets the requirements for at least 

one kind of operation authorized in its operations specifications. The FAA did 

prove that Helicopter Flite did not have exclusive use of the 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 Law Judge's decision was 

reversed, and no civil penalty was assessed. 

The Complainants did not present any case law precedent at trial or 

otherwise that would contradict the above premise. The only reference given by 

Complainant was a hypothetical interpretation of a 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 of MRH, 

both factors were different and many other factors that would not apply to the 

Complainants stated hypothetical. Mr. Baker was 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 Complainant were not clea.rly referenced or disclosed in the 

signed operation specifications or compliance statements making these 

regulations impossible for Respondents compliance since they were hidden, 

omitted and concealed. It is not proper or reasonable 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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It was established during examination of Ms. Lozada, the central 

manager of the Drug Abatement program, that the part of the Op Specs section 

addressing Drug Abatement parameters A449 (Exhibit A-2) was signed off in 

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 

reference by Ms. Lozada to a remote website, the Federal Registry and also that 

the Drug Abatement 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 if there were questions. It was pursued at trial 

that if your inspectors stated and confirmed you were in compliance repeatedly 

for years and you were not notified otherwise, why would there be a question to 

seek additional information (Tr. 124-20)? 

Ms. Lozada stated that the 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 specialist in the office of audit and evaluation also did not know 

when the Drug Abatement website 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 about a year 

to populate that website with data, which brought the time-frame right up to 

the proposed violation of Mr. Baker performing a simple check of the rotor 

track and balance on July 24, 2008, triggering this action. 

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It was established that it was the responsibility of Flight Districts 

Standards Office to update those Op Specs, not that of the operator. This was 

not done, therefore the Op Specs were invalid in addressing the new regulation, 

only contained the older parameters which Respondent was always compliant 

with (Tr. 139-8). There was never any notification of the regulation change. 

It was established during examination of Ms. Frankel that she did not 

know what the term methods of compliance even meant and she could not 

define the term which is one of the main matters before the court (Tr. 273-2). 

Respondent asked Ms. Lozada and Ms. Frankel where it was 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 out if a regulation had changed without any notification 

process in place to determine this (Tr. 145-14). It was left as a random 

unknown method and interval, therein rendering it impossible for an operator 

to ever be fully compliant and the reason for the subsequent litany of changes 

by the agency to rectifY those problems. 

Ms. Frankel was 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 of a 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 

operator to review hundreds of pages of text on remote websites that was not 

referenced in the Op Specs to focus, find, comprehend, compare and then 

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determine if a 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 only response was, it just was the operator's 

responsibility (Tr. 308-13). 

It is not stated where the exact source location of these hidden (fine 

print) regulations were located or at what time intervals to carry out these 

tedious hit or miss search exercises all 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 occurred, without notification, training or 

public education, as is clearly evidenced by the history of the FAA's own 

officers in regard to these regulations. 

If a regulation is material and substantiates a penalty, then it would 

also follow that any "material" changes to an FAA regulation would warrant 

reasonable methods of communication and notice for a material change. Due 

to the voluminous depth of the Federal Register it would be impossible for the 

general public to monitor immaterial changes. Therefore, penalizing the 

Respondent for an immaterial change that modified operation requirements is 

procedurally inconsistent with 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 by known and established FAA 

inspectors in the sprit of compliance 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 of the regulation 

change by Mr. Roots in April of 2004, when MRH underwent its first FAA 

drug/ alcohol audit. MRH was not informed during 5 years of FAA operations 

inspections by Frank Alotta, was not informed during frequent maintenance 

inspections by FAA inspector Gerry Henninger. Mr. Henninger did require a 

copy of Mr. Baker's AP license and evidence of Mr. Baker's employment Drug 

program by Helicopters Inc. (Exhibit R-3) before any work was performed on 

the aircraft, but did not state or require Mr. Baker to be on MRH's always 

existent drug program. 

The Allentown FSDO is located across the street and its officer'~ 

inspected frequently during their daily activities at the Lehigh Valley 

International Airport (ABE) where the aircraft has been hangared for over 12 

years, never to find MRH in 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. 

Complainants attest that changes to the regulations were promulgated 

and amended by notice in accordance the Administrative Procedures Act or 

through the Federal Registry Publication of Final Rule. If this is so. then why 

were FAA officers and all others also unaware of the changes? (Emphasis 

supplied). 

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

this scenario of no FAA official knowing of the 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 of the 

regulation change or send some form of notification. 

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 of this 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-slgnoff 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 that no 

one was unaware of, not formally or otherwise notified of, or signed off on. 

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 safety sensitive functions must be covered by an li'AA 

approved drug and alcohol testing program. These individuals referred to, 

did comply with drug and alcohol testing regulations by their full time 

employers. 

It was discovered that the 2 regulations that the agency was 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 unbeknownst by the complainants (Exhibit A-12): 

'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 sen111e to pull the existing 

regulations together in one place'[SIC], 

Access to that FAA website months ago stated Removed and 

I4JOO 18/0025 

Reserved, nothing more (Exhibit R-8). The now working link shows therecodification of§135.251 to §120.35 and§ 135.255 to§ 120.39, adding new 

meaning to the Moving Target and Shifting nature of these regulations. Now 

the compliance with this regulation even appears dependent on whether or not 

a computer shifting and variably software hypertext website link is operating 

correctly (emphasis supplied), 

As is common law and in accordance with standard practices in 

Administrative Law: 

"In the interpretation of the language of 

regulations, where doubt exists as to the intent of 

the meaning of the language written and enacted 

by a governing body, the language shall be 

interpreted in favor of the Party and against any 

implied extension of 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 they were 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 of MRH (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 (Exhibit A-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 clear wording not referring to remote 

websites and confirmatory sign off by the operators, all elements not present in 

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 must be completed. 

In accordance to the "Doctrines of Equitable Tolling" and Mutuality, 

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the Respondent cannot be held libel for a changed regulation he was not 

informed of or not able to discover until after the change occurred. This is the 

jurisprudence and reason why changed sections the Operation Specifications 

are revised periodically and signed off by affecting parties to confirm discovery 

of those 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 Enforcement Tracking system (CETS) clearly states 

that "Legal enforcement action includes circumstances where serious safety 

issues are involved or there is a pattern of noncompliance that indicates an 

inability or unwillingness to comply with regulatory requirements"? 

(http: II www .faa.gov I documentUbrarv/ media/ Order I FULL%209120.1Al. pd 

A rotor track and balance check was performed on July 24, 2008 by Mr. 

Baker when he was only on the a primary Drug program for Air Methods 

Corporation and a second drug program through the National Guard. 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) (Exhibit A-4). No changes 

or corrections were made to the rotor track and balance and no weights were 

added, no actual service was performed, it was purely a check or a reading and 

the system found to be well within specification. 

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The Compliance and Enforcement Tracking system (CETS) also cites that a 

letter of correction (LOC) or warning notice (WN) is appropriate when there are no 

serious safety issues or unwillingness to comply with regulations. 

In addition to the inquiry as to the serious safety concerns that Ms. Lozada 

(Tr. 157-12) had, she believed there were serious safety concerns just on the 

basis that part 135 flights were flown. But when asked if she believed that part 

135 flights were flown since that rotor track and balance was checked, she then 

changed her answer to 4 ! didn't say that". It was clearly established from the 

flight log record that no part 135 operations were performed since a year even 

before that rotor track and balance check was performed and while the company 

was in moratorium. 

Furthermore, that same rotor track and balance check was repeated by 

Mr. Baker after he was placed on MRH's own drug program. No flights were ever 

flown in the interim, therefore there were never any serious safety issues. 

The second condition to commence enforcement procedures is if an 

operator was unwilling to comply with the regulations. When Ms. Lozada was 

asked if MRH was unwilling to comply, she stated "I believe so" (Tr. 158-17). It 

was commented to Ms. Lozada, how could MRI-I have been unwilling to comply 

when they did not know of the regulation change and was not informed of the 

change. lt was confirmed that once MRH was aware, Mr. Baker was placed on 

their existing Drug program (Tr. 224-14) and Ms. Frankel also confirmed that 

statement (Tr. 313-4). 

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The specific agency language states where serious safety issues involved. 

Since there was no incident or accident there was no event and/or opportunity 

for any serious safety issues 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, even without making any changes or corrections. The Enforcement 

Regulations do not leave room or state that a violation should be issued based 

purely on speculation. Ms. Frankel nonetheless claimed, there could have been a 

safety issue despite the aircraft was not flown 135 from before the cited violation 

to the current (Tr. 310-10). 

Mr. Kim Barnette was asked if during ramp or maintenance inspections if 

the agency maintenance inspector had a responsibility to check out the 

personnel working on the aircraft, his answer was that was not within 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 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 who were on a primary employer's drug program and 

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therein MRH was in compliance. 

'fhe primary premise for the violations of this case rested on the 

assumption that Mr. Baker A&P was not on any drug/ alcohol testing program 

when performing saiety 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 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 was employed full-time by his primary employer, national 

company Air Methods 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 and 

never tested positive. In addition Mr. Baker was on the National Guard 

Drug/Alcohol program in his capacity as a pilot and AP. 

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

pertain 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. 

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When Ms. Ponto was asked by Judge 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 Transcript page 14, line 

21). 

When asked by Judge Yoder asked if there 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 

Assuming Arguendo, that there 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 of MRH'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 but without 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 of this LLC 

has the liability protection of a corporation. A principle 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 of operation, 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 at a 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, 1 year before, 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 of any kind), it did not involve an 

incident or accident, the aircraft was not even flown 135 and the check was 

redone after Mr. Baker was on MRH's program. There was no unwillingness 

once finally notified of the regulation change to place Mr. Baker on the 

company's drug program. 

It was impossible to be compliant with the regulation because the 

regulation had changed without notification of any kind, there were no 

methods of compliance listed in the outdated Op Specs, the regulations were 

obfuscated, changed, moved and removed, reserved and re-codified. 

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04/10/2012 8:48AM FAX ~0024/0025 

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 any judgment is 

not warranted therefore all claims must be immediately QUASHED, STRICKEN 

and DISl\USSED. 

Respectfully Submitted, :P\_\{rt 

Michael B. Selig, MD, FACC. ~ 

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04/10/2012 8:48AM FAX 

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

Federal Aviation ~diDinlstration 

Complainant 

v. 

M & R Helicopters, LLC. 

Respondent 

Honorable Judge Richard 

Goodwin 

Docket: 2010·1211 

CERTIFICATE OF SERVICE 

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

RESPONDENT'S POST TRIAL BRIEF TO DISMISS COMPLAINT 

li1J0025/0025 

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 Email and Fa,i 

Federal Aviation Administration 

800 Independence Avenuo, SW 

Wilbur Wright Avenue-Suite 2Wl000 

Wa~Shington, D.C. 20591 

Att: Hearing Docket Clerk, AGC-430 

FAX 202 493 5142 

Charles Raley 

Enforcement Division/ AGC-300 

Office of the Chief Counsel 

FAA 

800 Independence Avenue, SW 

Washington, DC 20591 

FAX 202 267 5106 

The Honorable Richard C. Goodwin 

US Department of Transportation 

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

1200 New Jersey Avenue. S.E. 

Washington, DC 20590 

FAX 202 366 7536-not working 

patricia. m atthews@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 ~~:Jt- / \