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In the matter of: FAA Docket No. CPIOSWOOIO 

FDMS NO. FAA-2010-0974 . 

AIR Z FLYING SERVICE INC. Case No. 2009 SW9rO05I 

JUDGE; GOODWIN 

RESPONDENT'S REPLY TO 

ADMINISTRATOR'S 

SUPPLEMENT TO MOTION 

FOR DECISION 

Now comes Respondent Air Z Flying Service Inc, and submits its response to Administrator's 

supplement to its motion for decision. On June 2, 2011 the counsel for the Administrator conducted a 

brief deposition of one Bradley Rohl, who was the Respondent's Designated Employer Representative 

(DER). As will be shown below, it was disastrous to the Administrator. The Administrator now 

strangely files a supplement to its original motion to decision claiming that it has in effect shown there 

can be no material fact regarding whether Administrator can prove Respondent Air Z received 

confimiation, in anv mamier. of the negative drug test result for the subject Rich Kovacic before he 

(Kovacic) worked on an Air Z aircraft on June 6, 2008. Nothing could be further from the truth. As set 

forth below, the deposition transcript and additional materials Administrator submitted only serve to 

strengthen the case of the Respondent. 
L 

. It is uncontroverted that subject employee Kovacic gave a urine specimen to the collecting agency on 

May 28, 2008. Administrator further admits in discovery responses that it appears you (Respondent) 

have determined the correct dates for the specimen analysis and the date of written confirmation by the 

(Medical Review Officer). The date for the testing of the specimen by the lab would have been on or 

before May 30. 2008, and the date that the MRO signed off on such would be June 6, 2008. (See 

Exhibits 3, 8 of Administrator's original motion and Exhibit "B" of Respondent's original response to 

Administrator's motion.) 

Furthermore, Bradley Rohl has testified in his deposition that he received confirmation of the negative 

result of the subject Kovacic's drug test before he (Kovacic) worked on the subject aircraft on June 6, 

2008. This was done telephonically on or about May 28, 2008, but clearly before the subject began work 

on the aircraft. In that supplement, the Administrator's counsel attempts to make something out of the 

fact that the date of May 28, 2008 could not be correct, but Mr. Rohl testified the date could be off by a 

day or so. {See pg. 15 of Bradley Rohl deposition transcript attached to Administrator's supplemental.) 

The records submitted previously show that the specimen was probably tested and confirmed negative 

on May 29, 2008 or May 30, 2008, and then officially verified in writing by the MRO on June 6, 2008. 

{See exhibits 3 and 8 of Administrator's original motion.) In the deposition transcript, Administrator's 

Counsel also tried to make some headway by alleging that Mr. Rohl's statement that he received the 

infonnation from "Choice Point" before they could have officially had it, and not the designated MRO 

(at the time), to wit ASTS, and also questions if Mr. Rohl remembers anything about the person with 

whom he spoke. However this is all a 'red herring", as it is clear from the documentation that the 

information between the two companies was freely exchanged, and such written documentation Choice 
Point was incomplete at best. (Tr. Pg. 15, lines 18-25). In fact the official negative report of July 17, 

2008 comes from Choice Point, not the designated MRO, ASTS. (See exhibit 2 of Administrator's 

original motion)'. It is clear that these companies had no problem exchanging test result infonnation. 

Moreover, in this regard the Code of Federal Regulations themselves specifically states that 

communication of the results by direct telephone contact to DRE (in this case Bradley Rohl) is the 

preferred method of immediate reporting. (See, 49 CFR subpart G, section 40.167. (a)(1)). The 

transmission of the official report is done thereafter. (Usually within two days) (See, 49 CFR subpart 

G section 40.167 (c). 

The bottom line is that Bradley Rohl testified in that deposition, and will so testify at trial, that to 

the best of his recollection he received confirmation of the negative result telephonically (the preferred 

method) and recorded such information on the file, his business record which he produced at such 

deposition. (Deposition exhibit 13) This sanctioned procedure under the Code of Federal Regulations 

aforementioned was his normal procedure for all such drug tests. (Deposition transcript - pp. 9-12) 

prior to the time any subject employee ever worked on an Air Z Airplane in a safety sensitive function. 

Whether this confirmation of the negative result for the employee Kovacic was from Choice Point, 

ASTS, Concentra (the collecting agency) or any combination of those is irrelevant as it is clear that the 

information was freely exchanged amongst those agencies and Bradley Rohl properly relied upon them. 

Those uncontroverted facts are not speculation as alleged by the Administrator. They are solid evidence 

for the trier of fact to consider on the material issues involved. Period. 

' It is imeresting to noie how evea Administrator's counsel will not say that Choice Point, aUhough not being the designated 

MRO, did not have access lo such infomiation. He simply says they did not have it "at that time". But this is based upon the 

dates of transmission of the official reports still file, not on any record of reports they no longer have or more importantly, on 

any records of direct telephonic communication, the preferred method. Additionally, as will be shown trial, the transcripts of 

the persons interviewed by the FAA in conjunction with this case are internally inconsistent, and in some cases, in direct 

conflict with the documents they submitted in discovery. But it is not necessary to discuss those specific issues for the 

purposes of this motion. They are matters of weight and credibility for the trier of fact to resolve at a hearing, not in this 

motion. 

3 
II. CONCLUSION 

Administrator has the burden of proof not only in this motion, but throughout the case. Moreover in a 

motion for decision such as this, the Administrator would have to absolutely negate all reasonable 

interpretations of the set of facts proffered by the Respondent to prevail. This is a very difficult burden 

ab initio, but it is heightened even more by the fact Administrator must prove a "negative" 

Administrator is clearly asking this Court to say that at trial, there would be evidence to show (1) 

Respondent's employee clearly did not have a negative confirmation of the drug test and (2) there would 

be no information whatsoever upon which to base a finding that Respondent had received a verbal 

confirmation of the negative test prior to subject employee Kovacic working on an aircraft in a safety 

sensitive function. Based upon what has been submitted, and as more clearly expounded below, this is 

an impossible task for Administrator. 

The Administrator filed this case upon the mistaken assumption that the specimen for the subject was 

not even tested until July 17, 2008, more than a month after subject worked on the subject aircraft on 

June 6, 2008. (See Complaint) Had this been the case, there would be nothing to argue about here as a 

violation would have unquestionably occurred. However the discovery process has revealed that the 

facts upon which such Complaint was based are grossly in error. The drug specimen of the subject 

employee was tested, found to be negative, and verified negative on or before June 6, 2008 the date 

subject first worked on an aircraft in a safety sensitive flmction. The proffered testimony and statements 

of Bradley Rohl, and the weight and credibility of all the evidence are present material of fact on the 
sole remaining issue of when Respondent received a verbal confimiation of that result. Administrator 

having painted itself into a corner with the original incorrect factual allegations, now asks this court to 

bail the Administrator out, by granting judgment to it as a matter of law to avoid a burden of proof that 

carmot be accomplished even at trial. There is a clear material issue of fact to be decided at trial. The 

motion should be denied. 

Respectfully Submitted, 

Laurence E. Rohl, President 

Air Z Flying Service Inc. 

355 Richmond Rd. Hangar 5 

Richmond Heights, Ohio 44143 

216-261-2992 

Certificate of Service 

A copy of this answer to the Motion for Decision was served this 6th day of August 2011 by 

regular mail on: 

1. Nicolas R. Millard, Attorney, Enforcement Division AGC-300 Office of Chief Counsel, Federal 

Aviation Administration 800 Independence Avenue, S.W. Washington D. C. 20591 

2. Hearing Docket, Federal Aviation Administration, Orville Wright Building, 800 Independence 

Avenue S. W., Washington D. C. 20591 

Laurence E. Rohl