pcomodeca@calfee.com 216.622.8830 Direct April23, 2012

VIAFEDERALEXPRESS 

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# HEARING DOCKET

The Honorable Richard C. Goodwin U.S. Department ofTransportation Office ofHearings, M-20 1200NewJerseyAvenue, S.E. WashingtonDC 20590 Calfee,Halter & GriswoldLLP Attorneys nt Lnw The Calfee Building 1405 East Sixth Street Cleveland, Ohio 44114-1607 216.622.8200 Phone calfee.com



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Re: In theMatter of Air-ZFlyingService, Inc. 

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# l(J FAADocketNo. CP10SW0010, CaseNo. 2009SW910051 

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## J DearJudge Goodwin: Enclosedplease find an original ofRespondent's Post-Hearing Briefin the above-captioned matterwhich is being filed with the Federal AviationAdministrationviaFederal Express on April24, 2012. Ifyou have anyquestions orcomments, please do nothesitateto contactme.

PJC:jss Enclosure
cc viaFederal

## Express:~earing Docket Clerk, Federal Aviation Administration Nicholas R. Milliard, Esq., Federal AviationAdministration cc via email: Mr. Brad Rohl, Air-Z Mr. LarryRohl, Air-Z

{01471664.DOC;l } Cleveland I Columbus I CincinnatiUNITEDSTATESOFAMERICA 

# DECEIVED U.S.DEPARTMENT OF**TRANSPORTATI~**

FEDERALAVIATION ADMINISTRATION wASHINGTON,D.C. 

## APR 242012 

# HEARI-NG DOCKET ) Inthe matterof ) FAADocketNo. CPlOSWOOlO Case No. 2009SW910051 Judge Richard C. Goodwin ) AIRZ FLYING SERVICE, INC. ) )



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RESPONDENT'S POST-HEARINGBRIEF 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 ofAdministrative Law Judge Goodwin, Respondent files its Post-HearingBriefinthe above-captionedmatter.
STATEMENT OFTHE CASE FACTUALARGUMENT The relevant facts ofthis case are uncontroverted andjustify a dismissal ofthe penalty assessed against Air-Z. On May 28, 2008, Mr. Kovacic was tested for drug use (Respondent's ExhibitB). Mr. Kovacic's test results were verified as negative on June 6, 2008, by ASTS Corporation (Respondent's ExhibitA, obtained viadiscovery). The policyofASTS Corporation
as written byits president, Mr. Jones, was that "the verification process is not initiated until we have informationthat 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 ofimmediate reporting." (49 C.F.R. part 40, § G, 40.167). Mr. Kovacic did notperform any safety sensitive workuntil June 6, 2008, the date the negative testresult 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 byMr. Kovacic until after a negative test resultwasreceivedbyAir-Z andno aircraftwas everinjeopardy. TheActions ofAir-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 byMr. Rohl that he had received a verbal notification ofMr. 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 thoughtthattheMRO was ChoicePoint, buthewas not certain (Transcriptp. 211). The GovernmentInvestigation 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 } 2inspector, 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 ofthis matter, and was the wrong Governmentwitness. 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 Custodyand Control Form (CCF) wenttoASTS. Infact, 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 orifthey got the sample" (Transcriptp. 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, itreceived 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 didthat and wouldnothave done thatbecause itwas notthe 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 } 3contradictory 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 ofthat exhibit when it chose to not believe Mr.Rohl and not investigate the ASTS verification date ofJune 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 ExhibitA) 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 testresults." The written statementbythe ASTS president is inconsistent with the testimony ofMissFrankel that ASTS never contacted Air-Z. The date ofsuch contact had to be the ASTS

{01452033.DOC;l } 4test verification date ofJune 6, 2008, because, as the ASTS president testified, "Our system does not allow us to manipulate dates" (Respondent's ExhibitB), and Mr. Jones stated ASTS "verified the result and immediately contacted the DER from Air-Z" (Respondent's ExhibitC). The Government did nothing to investigate the totally opposite statements ofthe ASTS president with those the FAA obtained by telephone from subordinate ASTS employees. This is another occasionofthe Governmentignoring investigative leads and mitigating evidence. The Government argument makes much ofthe hiring date ofMr. 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 ofhire issue in this
casebecause Miss Frankel testified that "one ofthe dates that we mayuse wouldbethe datethey 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 ofASTS is the same as Mr. Kovacic's first dayofsafety sensitive work. As to the existence ofa 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 ofthe failed processes at ASTS and the confusion between it and ChoicePoint over who was the MRO. Itis mostprobable that Mr.Rohl couldhave contacted ChoicePoint and ASTS every day and still not receivedthe written confirmation any sooner.

{01452033.DOC;l } 5The 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 ofthe FAA against Air-Z. Had the Government fully investigated the handling ofthe test, the telephone records ofASTS, and the confusion derived from the apparent presence oftwo MROs, itwould nothave assessed apenalty, particularlywhere ASTS verified a negative test result onJune 6, 2008, and Mr. Kovacic did notbegin safetyrelated work until that
same day. Instead, the Government locked onto a conclusionbased on an erroneous assumption that ChoicePoint was the MRO and for two years refused to considermitigating evidence ithad inits file, butAir-Z didnothave 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 copyofthe negative testresult. This was clearlyexplained at thehearing (Transcriptpp. 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 } 6Mr. Kovacic to work once verbal confirmation ofa negative is received. That is exactly what happened in this case. ASTS admits it called Air-Z, yet the Government has no record ofthat actionin its investigative file. ASTS' Testimony Contradicts Its Written Documentation The president ofASTS testified that it was near impossible to call Air-Z withthe 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 clearlyindicates thatitwasprovidedto ASTS onMay28, 2008, through the fax streamer at the top ofthe form. No telephone records ofASTS havebeenprovided 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 ofthe Air-Z DER. However, that testimony is contradicted byMr. Jones' letter ofJune 30, 2010, where he states a call was made. Additionally, Ms. Deborah Joy, of Concentra Medical Center, stated that the informationonthe CCF wouldhave allowed anyone to immediatelycall and find outthe identity of the DER at Air-Z. (Transcript pp. 111-113.) Ms. Jay has vast experience with the drug testing regulations ofDOT and has no incentive to shade her testimony. Her testimony further discredits the testimony ofASTS that it had to sit on reporting the test results for over 6 weeks becauseitwas unaware ofthe DER. The testimony ofMr. Jones is relied on bythe 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 } 7self-serving fashion the gaps in the deficient ASTS recordkeeping system in an effort to cover theprocess failures at ASTS. Thereis No ReliabilityRegardingASTS 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 notproduce all files related to Mr. Kovacic's negative testresult (Transcriptp. 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 notincludedinMiss Frankel'sinvestigativememo at ClaimantExhibit 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 Governmentto fully understandthe errors ofASTS and inhibitedAir-Z's abilityto defenditself. CONCLUSION The Government has failed to meet its burden that Air-Z acted improperly and put Mr. Kovacic to work before receiving notification ofnegative 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 despitenotproducing all relevantdocuments to eitherthe Government orAir-Z.

{01452033.DOC;l } 8The Government investigation was woefully inadequate and could have avoided this entire matterhadjust a few documents in the file beenread or a few telephone calls beenmade. As such, the Governmenthas not met its burden and Air-Z requests that theproposedpenaltybe strickeninits entirety and thatitbeawarded attorneys fees and costs ofthismatter.

{01452033.DOC;l } Respectfully submitted,

PETERJ OMODECA (0051281) CALFE , HALTER& GRISWOLD LLP 1405 East Sixth Street Cleveland, OH 44114 Telephone: (216) 622-88308 Facsimile: (216) 241-0816 pcomodeca@calfee.com

9CERTIFICATE OFSERVICE I hereby certify that on April 23, 2012, I served by Federal Express, a copy of the preceding Respondent's Post-Hearing Briefin In the Matter of Air-ZFlying Service, Inc., FAA DocketNo. CPlOSWOOlO, CaseNo. 2009SW910051, addressedto: Nicholas R. Milliard, Attorney EnforcementDivision, AGC-300 Office oftheChiefCounsel Federal AviationAdministration 800Independence 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: TheHonorable Richard C. Goodwin U.S. DepartmentofTransportation Office ofHearings,M-20 1200NewJerseyAvenue, S.E. Washington, D.C. 20590 I also hereby certify that I served by Federal Express, the original and one copy ofthe same, to:

{01452033.DOC;l } FederalAviation Administration 600 Independence Avenue, S.W. WilburWright Building- Room 2014 Washington, D.C. 20591 Attention: HearingDocketClerk, AGC-430

oeca, Esq. Air-Z Flying Service, Inc.

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