pcomodeca@calfee.com 

216.622.8830 Direct 

April23, 2012 

VIA FEDERAL EXPRESS 

RECEIVED 

.· _ .APR 2 4 2012 

HEARING DOCKET 

The Honorable Richard C. Goodwin 

U.S. Department of Transportation 

Office ofHearings, M-20 

1200 New Jersey Avenue, S.E. 

Washington DC 20590 

Calfee, Halter & Griswold LLP 

Attorneys nt Lnw 

The Calfee Building 

1405 East Sixth Street 

Cleveland, Ohio 44114-1607 

216.622.8200 Phone 

calfee.com 

lJ 

Re: In the Matter of Air-Z Flying Service, Inc. Jr::: /V\ -\ ~~-.1 0 -0 Cj l(J 

FAA Docket No. CP10SW0010, Case No. 2009SW910051 f 1"'"11 ~ J 

Dear Judge Goodwin: 

Enclosed please find an original of Respondent's Post-Hearing Brief in the above-captioned 

matter which is being filed with the Federal Aviation Administration via Federal Express on 

April24, 2012. 

If you have any questions or comments, please do not hesitate to contact me. 

PJC:jss 

Enclosure 

cc via Federal Express:~earing Docket Clerk, Federal Aviation Administration 

Nicholas R. Milliard, Esq., Federal Aviation Administration 

cc via email: Mr. Brad Rohl, Air-Z 

Mr. Larry Rohl, Air-Z 

{01471664.DOC;l } 

Cleveland I Columbus I Cincinnati 
UNITEDSTATESOFAMERICA DECEIVED 

U.S. DEPARTMENT OF TRANSPORTATI~ 

FEDERAL AVIATION ADMINISTRATION 

wASHINGTON, D.C. APR 2 4 2012 

HEARI-NG DOCKET 

) 

In the matter of ) FAA Docket No. CPlOSWOOlO 

Case No. 2009SW910051 

Judge Richard C. Goodwin 

) 

AIR Z FLYING SERVICE, INC. ) 

) _________________________ ) 

RESPONDENT'S POST-HEARING BRIEF 

In accordance with Rule 13.231(c) of the Rules of Practice m Federal Aviation 

Administration Civil Penalty Actions and in accordance with the order of Administrative Law 

Judge Goodwin, Respondent files its Post-Hearing Brief in the above-captioned matter. 

STATEMENT OF THE CASE 

FACTUAL ARGUMENT 

The relevant facts of this case are uncontroverted and justify a dismissal of the penalty 

assessed against Air-Z. On May 28, 2008, Mr. Kovacic was tested for drug use (Respondent's 

Exhibit B). Mr. Kovacic's test results were verified as negative on June 6, 2008, by ASTS 

Corporation (Respondent's Exhibit A, obtained via discovery). The policy of ASTS Corporation 

as written by its president, Mr. Jones, was that "the verification process is not initiated until we 

have information that allows us to report the result." (Respondent's Exhibit C.) Consistent with 

Government regulation and ASTS written policy, Mr. Brad Rohl received a telephone report of 

the negative test result on June 6, 2008. Government regulations required ASTS to "transmit 

[verified test results] to the Designated Employer Representative (DER) on the same day the 

Medical Records Officer (MRO) verifies the result" and "direct telephone_contact with the DER 

{01452033.DOC;l } 
is the preferred method of immediate reporting." (49 C.F.R. part 40, § G, 40.167). Mr. Kovacic 

did not perform any safety sensitive work until June 6, 2008, the date the negative test result was 

verified and reported by ASTS. (Respondent's Exhibits A and D.) Thus, Mr. Kovacic did not 

perform any safety sensitive work until after Air-Z received notification of the negative test 

result. The fact that verified test results and Mr. Kovacic's work were on the same day is no 

coincidence. 

The confusion in this case comes from the inadequate Government investigation and the 

inconsistencies between ASTS testimony and its documents. The incomplete investigation by 

the Government generated inaccurate information causing the FAA to improperly assess the 

penalty. What cannot be lost is that no work was done by Mr. Kovacic until after a negative test 

result was received by Air-Z and no aircraft was ever in jeopardy. 

The Actions of Air-Z 

Air-Z utilized Mr. Kovacic as an independent contractor because he had a history of 

performing safety related work for other companies familiar to Air-Z. Mr. Brad Rohl was the 

DER at Air-Z. The FAA inspection team came to Air-Z on July 23, 2008. At that time, they 

were told by Mr. Rohl that he had received a verbal notification of Mr. Kovacic's negative test 

results. He then wrote down the note explaining his efforts in attempting to get the written 

confirmation (Claimant's Exhibit 2 and Transcript p. 215, lines 7-9). At that time, Mr. Rohl 

thought that the MRO was ChoicePoint, but he was not certain (Transcript p. 211 ). 

The Government Investigation 

The Government presented Miss Frankel as its sole FAA witness regarding the 

investigation and determination of penalty. Miss Frankel was not the team leader of the 

inspection team. She was not even on the team. The inspection had to pass through the 

{01452033.DOC;l } 2 
inspector, the team coordinator and/or central manager, the program analyst at headquarters of 

the FAA, and then to Miss Frankel. (Transcript p. 88.) Apparently Miss Frankel had other ties 

to Cleveland which would explain her ancillary presence at the inspection and her return as the 

sole Government hearing witness. Miss Frankel is four levels above the inspection process, has 

limited hands-on experience with the documents and investigation of this matter, and was the 

wrong Government witness. Where was the inspector? Where was the team leader? 

Miss Frankel testified that she believed ChoicePoint was the MRO. Yet she clearly 

admits that Mr. Kovacic's Custody and Control Form (CCF) went toASTS. In fact, the CCF did 

not contain the words "ChoicePoint" anywhere. (Transcript pp. 74-75.) She went on to testify 

that the FAA did not determine who the MRO was and she did not know how ChoicePoint "got 

the sample or if they got the sample" (Transcript p. 77). 

The Government believed ChoicePoint was the MRO (Transcript p. 90) and concluded 

Mr. Rohl was lying about a verbal notification. When the Government approached ChoicePoint, 

it received a Controlled Substance Test Report showing a negative test verified on July 17, 2008 

(Claimant's Exhibit 1, obtained by Air-Z via discovery). Remarkably, this same document 

reflects that the test sample was received, verified, and reported all on the same date, July 17, 

2008. However, the Government never inquired into this oddity even though it knew from the 

CCF that Mr. Kovacic's sample was taken May 28, 2008. This key investigative error caused 

the Government to disbelieve that Air-Z had been verbally notified because ChoicePoint never 

did that and would not have done that because it was not the MRO. 

The key error made by the Government in assuming that ChoicePoint was the MRO 

resulted in a bias against Air-Z. The Government immediately concluded that Mr. Rohl was 

lying regarding receiving a verbal negative test report. This conclusion was unchanged despite 

{01452033.DOC;l } 3 
contradictory evidence. The Government learned from ASTS that the ASTS documentation in 

their file showed verification on June 6, 2008. The Government learned that the ChoicePoint 

document at Claimant's Exhibit 1 contained gross inconsistencies in that the Exhibit falsely 

showed the test sample to be received, verified, and reported on the same date. The 

Government's entire case hinges on Claimant's Exhibit 1, and the Government was blind to the 

obvious deficiencies on the face of that exhibit when it chose to not believe Mr. Rohl and not 

investigate the ASTS verification date of June 6, 2008. Despite these key facts contrary to the 

Government case, the Government continued to not believe Mr. Rohl based on a woefully 

inadequate investigation. This obvious bias by the Government was arbitrary, capricious, and 

reflected an attitude of getting Air-Z at any cost despite the mitigating evidence in the 

Government's own files. 

Miss Frankel went on to state that it was clear to her from the ASTS DOT Result 

document (Respondent's Exhibit A) that ASTS was performing as the MRO and that ASTS 

verified the negative result on June 6, 2008. (Transcript p. 80.) Miss Frankel further stated that 

someone from the FAA contacted ASTS and her recollection is that ASTS stated they never 

contacted Air-Z. (Transcript p. 68.) However, the June 30, 2010, letter from Mr. Jones, ASTS 

president, to the FAA (Respondent's Exhibit C) was never seen by Miss Frankel, though it was 

in the FAA investigative file. (Transcript p. 64.) Again, why did she present the government's 

case? 

That June 30, 2010, letter from ASTS (2 years after the inspection) to the Government 

specifically states: "We verified the results and immediately contacted the DER from Air-Z of 

the test results." The written statement by the ASTS president is inconsistent with the testimony 

ofMiss Frankel that ASTS never contacted Air-Z. The date of such contact had to be the ASTS 

{01452033.DOC;l } 4 
test verification date of June 6, 2008, because, as the ASTS president testified, "Our system does 

not allow us to manipulate dates" (Respondent's Exhibit B), and Mr. Jones stated ASTS 

"verified the result and immediately contacted the DER from Air-Z" (Respondent's Exhibit C). 

The Government did nothing to investigate the totally opposite statements of the ASTS president 

with those the FAA obtained by telephone from subordinate ASTS employees. This is another 

occasion of the Government ignoring investigative leads and mitigating evidence. 

The Government argument makes much of the hiring date of Mr. Kovacic. However, 

Mr. Kovacic was engaged as an independent contractor and did no safety-related work until 

Air-Z received the verbal verified negative report. In fact, there is no date of hire issue in this 

case because Miss Frankel testified that "one of the dates that we may use would be the date they 

first performed safety sensitive functions." (Transcript p. 31.) The Government expends much 

time on the fact that no one transmitted a verified negative report to Air-Z before June 6, 2008, 

going on to say that no written report was issued before July 17, 2008. However, there is no 

need for a verified report to be received by Air-Z prior to June 6, 2008. A verbal report was 

received on that date, and Mr. Kovacic began safety sensitive work on that date. It is no 

coincidence that the June 6, 2008 verification date of ASTS is the same as Mr. Kovacic's first 

day of safety sensitive work. 

As to the existence of a written confirmation, it is clear from Mr. Rohl's testimony and 

his documentation that he attempted to get the written confirmation but it was not forthcoming. 

Through this hearing, it finally became obvious that it was not forthcoming because of the failed 

processes at ASTS and the confusion between it and ChoicePoint over who was the MRO. It is 

most probable that Mr.Rohl could have contacted ChoicePoint and ASTS every day and still not 

received the written confirmation any sooner. 

{01452033.DOC;l } 5 
The Government rushed to a conclusion by assuming that Air-Z had never been called, 

by misidentifying the MRO, and by failing to recognize the confusion exhibited between 

ChoicePoint and ASTS regarding who sends the written report. These errors formed the basis 

for the adverse finding of the FAA against Air-Z. Had the Government fully investigated the 

handling of the test, the telephone records of ASTS, and the confusion derived from the apparent 

presence of two MROs, it would not have assessed a penalty, particularly where ASTS verified a 

negative test result on June 6, 2008, and Mr. Kovacic did not begin safety related work until that 

same day. Instead, the Government locked onto a conclusion based on an erroneous assumption 

that ChoicePoint was the MRO and for two years refused to consider mitigating evidence it had 

in its file, but Air-Z did not have until discovery. 

Air-Z's Actions Were Proper 

The Government was aware during its inspection that Brad Rohl was the DER, that 

Mr. Rohl stated he received a verbal negative report regarding Mr. Kovacic's drug test, and that 

Mr. Rohl was merely waiting for the written confirmation though he was not quite certain as to 

how or who to contact to obtain written confirmation. He naturally contacted Concentra, the 

testing lab. He made notes on a manila folder to record his efforts to obtain written verification, 

and his handwritten notes to the Government inspectors reflected his efforts to obtain the hard 

copy of the negative test result. This was clearly explained at the hearing (Transcript pp. 208). 

What is clear from the evidence is that no matter how Mr. Rohl may have improved his 

note keeping, it would not have generated a written report any faster because the confusion was 

between Concentra, ASTS, and ChoicePoint. It took those entities over a month to determine 

who would render the written report, even thought ASTS verified the negative on June 6, 2008, 

and, according to its written policy, called Air-Z immediately. The Federal regulation allows 

{01452033.DOC;l } 6 
Mr. Kovacic to work once verbal confirmation of a negative is received. That is exactly what 

happened in this case. ASTS admits it called Air-Z, yet the Government has no record of that 

action in its investigative file. 

ASTS' Testimony Contradicts Its Written Documentation 

The president of ASTS testified that it was near impossible to call Air-Z with the verified 

negative report because he had no contact information. This is patently self-serving as the CCF 

contains the name, address, and telephone number for Air-Z. (Respondent's Exhibit B.) The 

CCF clearly indicates that it was provided to ASTS on May 28, 2008, through the fax streamer at 

the top of the form. No telephone records of ASTS have been provided to Air-Z or, presumably, 

to the Government, to support the nature and time of the ASTS call to Air-Z. No ASTS 

employee was produced to describe the call that its president said was made. ASTS testified 

repeatedly that it could not have called because it did not know the identity of the Air-Z DER. 

However, that testimony is contradicted by Mr. Jones' letter of June 30, 2010, where he states a 

call was made. Additionally, Ms. Deborah Joy, of Concentra Medical Center, stated that the 

information on the CCF would have allowed anyone to immediately call and find out the identity 

of the DER at Air-Z. (Transcript pp. 111-113.) Ms. Jay has vast experience with the drug 

testing regulations of DOT and has no incentive to shade her testimony. Her testimony further 

discredits the testimony of ASTS that it had to sit on reporting the test results for over 6 weeks 

because it was unaware of the DER. 

The testimony of Mr. Jones is relied on by the Government to add clarity to the 

ASTS written documents. However, Mr. Jones cannot be believed when his testimony focuses 

on changing the words and plain meaning of letters he authored and in trying to explain in 

{01452033.DOC;l } 7 
self-serving fashion the gaps in the deficient ASTS recordkeeping system in an effort to cover 

the process failures at ASTS. 

There is No Reliability Regarding ASTS Recordkeeping 

ASTS changed its data system many times, which could account for the incomplete and 

inadequate records of their activities regarding the handling of Mr. Kovacic's test results. 

(Transcript p. 164.) The ASTS president further testified that he did not produce all files related 

to Mr. Kovacic's negative test result (Transcript p. 141) such as ASTS telephone logs and ASTS 

transmittal logs reflecting communication with any party related to Mr. Kovacic's test 

(Transcript p. 153). It is also suspicious that while ASTS testified it called Air-Z, that critical 

fact was not included in Miss Frankel's investigative memo at Claimant Exhibit 3. 

ASTS did not provide Air-Z with key documents when requested, such as the ASTS 

DOT Result (Respondent's Exhibit A), telephone logs reflecting Miss Garza's call to Air-Z on 

June 6, 2008, and the setup sheet from Concentra referenced in the last paragraph of 

Respondent's Exhibit C. Failing to produce these key documents made it more difficult for the 

Government to fully understand the errors of ASTS and inhibited Air-Z's ability to defend itself. 

CONCLUSION 

The Government has failed to meet its burden that Air-Z acted improperly and put 

Mr. Kovacic to work before receiving notification of negative test results. Documents in the 

Government's file establish that the negative test was verified on June 6, 2008 and 

Mr. Kovacic's first safety sensitive work was June 6, 2008. That is not a coincidence. The 

record is also clear that ASTS spent its time on the witness stand running away from its own 

documents, and acknowledging that its recordkeeping system was constantly changing and 

despite not producing all relevant documents to either the Government or Air-Z. 

{01452033.DOC;l } 8 
The Government investigation was woefully inadequate and could have avoided this 

entire matter had just a few documents in the file been read or a few telephone calls been made. 

As such, the Government has not met its burden and Air-Z requests that the proposed penalty be 

stricken in its entirety and that it be awarded attorneys fees and costs of this matter. 

{01452033.DOC;l } 

Respectfully submitted, 

PETER J OMODECA (0051281) 

CALFE , HALTER & GRISWOLD LLP 

1405 East Sixth Street 

Cleveland, OH 44114 

Telephone: (216) 622-88308 

Facsimile: (216) 241-0816 

pcomodeca@calfee.com 

9 
CERTIFICATE OF SERVICE 

I hereby certify that on April 23, 2012, I served by Federal Express, a copy of the 

preceding Respondent's Post-Hearing Brief in In the Matter of Air-Z Flying Service, Inc., FAA 

Docket No. CPlOSWOOlO, Case No. 2009SW910051, addressed to: 

Nicholas R. Milliard, Attorney 

Enforcement Division, AGC-300 

Office ofthe Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Telephone: (202) 267-3452 

Facsimile: (202) 267-5106 

Cole.milliard@faa.gov 

In addition, I hereby certify that I served by Federal Express, a copy of the same, 

addressed to: 

The Honorable Richard C. Goodwin 

U.S. Department of Transportation 

Office ofHearings, M-20 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

I also hereby certify that I served by Federal Express, the original and one copy of the 

same, to: 

{01452033.DOC;l } 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building- Room 2014 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

oeca, Esq. 

Air-Z Flying Service, Inc. 

10