12/09/2011 13:54 FAX 2024335142 

12/01/2011 10L19AM FAX 

FAA - DMS 2)001/032 

?10001/0OJ2 

Michael Selig, MD, FACC, CFl-H 

2816 Orefield Road 

AilcnCown, PA, 18104 

December 1, 2011 

0::!V\RTMEMTOF 

•iC m QPERATiONS 

ZO!l uEC \2 A B 21 

U.S . DEPARTMEN T O F TRANSPORTATIO N 

OFFIC E O P HEARING S 

WASHINGTON , D. C 

Federa l Aviation Administration 

Complainants 

M fi» R HelicapterSf LLC. 

Respondent 

# 2010-121 1 

RESPONDENT'S BRIEF SUPPORTING THE MOTION FOR DECISION TO 

DISMISS COMPLAINT 

I. INTRODUCTION 

The subject citation arises as a hypotheiical, far reaching and perhaps 

judiscriminant violation of Part 121» I and J drug and alcohol abatement 

regulations that have 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. There was never any notification process by the agency to confirm 

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such changes ever occurred, contrary to the procedures of all other pan s of the 

compliance statement and operational specifications. 

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 safety sensitive functions according to 

Inspector Statement lOP 9 r«cord (Exhibit 1). 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, far reaching and indiscriminant subject citation was 

aggressively pursued despite the MR Helicopter's operation was shut down, 

non-operationaU was operating at a loss, had changed names, closed it's bank 

accounts and was unauthorized to perform part 135 flights without a certified 

part 135 pilot, during the cited violation period and ha s not since then. The 

citation was aggressively pursued despite its operation specifications or 

compliance statements were to be revised, updated and incomplete. 

Confirming that no operations were performed, the company operated at a 

financial loss during the violation period and since 2006. 

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II. 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 OlTiccr, Latonya Williams returned alone for further inspection of 

the MRH drug consortium reuords. Ms. Williams 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. Willianis insisted on a spur of 

the moment letter written to her, addressing several matters. 

Ms. Williams made the primary assumption that mechanic Edward 

Baker was not covered under any FAA-Mandated drug testing program and 

refused to deviate from that false assumption, despite later noting otherwise. It 

wa s 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. 

Ms. Williams aJso disclosed that there was a policy change that 

occurred in February 2004 , requiring all A & P mechanics to be on a company 

specific drug and alcohol program. Ms Williams did not provide the specific • 

details referencing this policy change or training with regard to specificity citing 

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details referencing the regulation changes, compliance proccd\ires and that a 

notification system that needed to be put into place, similar to FAA 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 ihc management personnel ai the Allentown FSDO were 

informed of the regulation change during thai 5 year period as well. 

Of concern, in April of 2004 , MRH underwent a Drug and Alcohol 

program inspection by FAA drug abatement officer, Vincent Roots and no 

significant discrepancies were cited (Exhibit 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, maintenance and avionics protocols. 

Respondent explained to Ms. Williams that MRH has not been able to 

and unauthorized to perform part 135 operations since Jun e 2007, due to 

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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 (mediceil leave). MRH had since also ceased operating under the 

name and under the ccnificatc number thereby rendering the complaint moot. 

All fmancials have been terminated under the MRH name, 

On August 14. 2009, Ms. Williams's letter informed MRH tha t 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 

gent 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 Mr. Frankle, attorneys Charles Riley and Ms. Ponto. This 

hearing was not recorded and transcribed. In that discussion it was noted the 

regulation change occurred in January 2004. 

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 inclvide updated 

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

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

in a drug and alcohol program (Exhibit 3). 

The complaint was amended twice. On December 10. 2010, the fine 

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was reduced to $4400. 

On March 25. 2011, a pre-trial teleconference was held with Chief 

Administrative Judge Ronnie Yoder. The following key points were made in the 

hearing transcript during this conference: 

When asked by Judge Yoder if MRH was conducting pa n 135 

operations, Ms, Ponto stated, she does not know (page 21, line 12). 

When Judge Yoder asked about the appendices 1 and J, Ms. Ponto 

referred to re-codified appendences 1 and J that occurred in 2009, after the 

2008 violation was cited (|!i^kgep4,:line 4). 

The point was made that when re-codificd there was an amendment to 

Appendix I but not to Appendix J (page 36, line 19). 

Judge Yoder made the statement on page 81, line 5 of the transcript: 

"AND I WOULD ENCOURAGE YOU TO BE INSIGHTFUL IN TRYING 

TO REACH SOME SENSIBLE CONCLUSION OF WHAT FRANKLY 

IS ONE OF THE LEAST SENSIBLE CASES I'VE SEEN IN 3 5 

YEARS AS A JUDGE" [SIC}. 

Shortly after that statement the case was transferred to the Honorable Judge 

Goodwin. 

On September 29, 2011, Judge Goodwin served an order sanctioning 

Respondent by way of restricting "offering or rel>'ing upon any documents, or 

any information contained in them, or any witnesses which it has foiled to 

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notice in response to Complainants discovery request" [SIC}. 

m . ARGUMENT 

1. MRH AT ALL TIMES RELEVANT WAS AUTHORIZED TO 

CONDUCT PART 135 OPERATION UNDER ITS CERTIFICATE. 

This statement made by Complainants is manifestly incorrect and erred. In 

order to be authorized to conduct operations several conditions must be met. 

First the operational specifications and compliance statements have to be 

updated, current with confirmatory signatures. This was not the case with MRH, 

particularly in regard to the references to the Drug program. Last signed off 

statement was January 2004. The company also underwent a corporanon 

change, making the operation specifications invalid. 

In order to conduct operations the part 135 the pilot needs to comply with the 

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

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

FAA examiner. None of this was in place; therefore MRH was not authorized to 

conduct part 135 operations, since Jun e of 2007. 

2. MRH HAS NOT BEEN IN OPERATION SINCE JUNE 200 7 

RENDERING THE CITATION MOOT 

Complainants erred by asserting that exposure and liability for a violation 

is wai'rantcd based solely on possessing operating specifications and a listed 

certificate (transcript page 16, line 5). How could the operation be active if it was 

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notice in response to Complainants discovery request" [SIC}. 

lU. ARGUMENT 

1. MRH AT ALL TIMES RELEVANT WAS AUTHORIZED TO 

CONDUCT PART 13S OPERATION UNDER 1TB CERTIFICATE. 

This statement made by Complainants is manifestly incorrect and erred. In 

order to be authorized to conduct operations several conditions must be met. 

First the operational specifications and compliance statements have to be 

updated, current with confirmatory signatures. This was not the case with MRH, 

particularly in regard to the references to the Drug program. Last signed off 

statement was January 2004. The company also underwent a corporation 

change, making the operation specifications mvalid. 

In order to conduct operations the part 135 the pilot needs to 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 

FAA examiner. None of this was in place; therefore MRH was not authorized to 

conduct part 135 operations, since Jun e of 2007. 

2. MRH HAS NOT BEEN IN OPERATION SINCE JUNE 200 7 

RENDERING THE CITATION MOOT 

Complainants erred by asserting that exposure and liability for a violation 

is waiTanted based solely on possessing operating sneci^ficadons and a listed 

certificate (transcript page 16, line 5). How could the operation be active if it was 

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

exercised good judgment in the best interests and safety of the public under part 

J 19.69 to withdraw all part 135 operations due to human factors beyond his 

control (protracted divorce). Respondent also could not carry out 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 vs. in theory authorized to engage in 

operations (pa^?_2p]ilirie! §). 

I n th e Matter of David E. Rverson d/b/ a Nortli Volley Helicopters, 

Dac,» FAA Order No. 2004-5, the court ruled that a violation is invalid based 

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

order for the violation to have merit. 

Complainants asserted that not performing operations prior to 

commencing a drug/alcohol programs is different than not conducting 

operations dui'ing a period of shutdown when the agency sought a violation. In 

the Everson case a program was mandated to be started 60 days after approval of ^ 

the program prior to commencing operations which apparently 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 

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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 program 

and in accordance to the operation specification and maintenance inspector's 

knowledge, advice and in good faith. 

Regulation 135.241 makes reference to Flight Crcwmcmbers 

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} refers to 

the certificate holder "and" operator. The use of the conjunctive "and" 

indicates tha t the regulation only applies if a company is not just a certificate 

holder but also an operator, which is one performing operations or performing 

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. 

More recent case law precedence (June 13, 2011) further supports this 

concept, In th e Matte r of: HELICOPTER FLITE, INC. FAA Order No. 2011-6: 

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In this cage 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 Hehcopter 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 not flights, conducted no operations. The Honorable Judge 

Babbit further stated; 

"HOWEVER, IT MAKES NO SENSE TO ENFORCE THIS 

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). 

For the foregoing reasons, the AUJ's decision was reversed, and no civil 

penalty was assessed. 

3 . REGULATIONS WERE NOT PROPERLY LISTED AND NOTICE 

OF REGULATORY CHANGES NEVER PROVIDED. 

The regulations 14 C.F.R. part 121, Appendix 1 and J and 49 C.F.R. 

part 40 relied upon by Complainant are not clearly referenced or disclosed in 

the signed operation specifications or compliance statements and are not 

contained in the FAR/AIM. These regulations are thereby hidden, omitted and 

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concealed making compliance impossible. 

It is not proper or reasonable to require an operator to uphold a 

regulation, when that regulation ha s been made difficult to find, the full text is 

not clearly written, and has not been incorporated into the compliance 

statement, operation specifications or FAR/AIM, To review hundreds of pages 

of text on remote websites to focus, find, comprehend, compare and then 

determine if a random change in a single isolated regulation had occurred, is 

an unreasonable burden. It is not stated where the exact source location of 

these hidden (fine print) regulations are to be located or a t wha t time Interval 

to carry out this tedious hit or misa search exercise that is 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 or public education, a s 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 depth of the Federal Register it would be impossible for a layperson to 

monitor immaterial changes that are implemented. 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 use s an 

effective, personalized, one on one approach by known and established FAA 

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inspectors in the sprit of compliance and safety. 

Ms. Williams informed Respondent that the regulation changes 

occiarred in Februar^^ of 2004 but the operation specifications A449 were 

confirmed and signed off in January 2004 (Exhibit). 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 5) before any work was 

performed on the aircraft, 

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

inspected frequently during their daily activities at the Lehigh Valley 

International Airport (ABE) where the aircraft ha s been hangarcd for over 10 

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 EMblication of Final Rule. If this is so. then how 

come no^one ever knew about the changes? (Emphasis sUPDliedl 

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

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this scenario of no one knowing of the regulation changes, only encouraged the 

potential violation and unreasonable to hold the Respondent to a highe r 

standar d an d a double standard than their own FAA officials or drug 

inspection officers who themselves did not know or inform MRH of the 

regulation change.. 

14 C.F.R. part 121, Appendix r and J and 49 C.F.R. part 40 are not 

disclosed and no forthright notification procedure was in place to inform the 

operator of this change, contrary to the routine protocol followed by all other 

operation specification chapters which included a regular notification 

procedure, update d an d re-wrltten operation specification revisions, 

physically replaced page s and subsequen t re-signofT an d confirmation of 

the new pages tha t the operator is aware and agrees, ft 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 135.251 and 135.255 as written in the compliance 

statement and confirmed by the Respondent does not state inherenUy tha t 

MRH must directly test each employee who performs a safety sensitive function 

(Exhibit 6:) but states empirically that an y person conductin g safety 

Bcnaitlve functions must be covered by an FAA approved drug and alcohol 

testin g 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 che agency was violating 

the Respondent for: §135.251 and 9135.255 , were so confusing, inconsistent, 

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contradictory and problematic that the FAA rule makers decided to remove . 

reaerve, revise, relocate effective July 13, 2009" by the FAA Rule makers 

perhaps unbeknownst by the complainants (Exhibit 7): 

*FAA is working on a msjot revision of its drug an d 

alcohol testing regulations. Given the complexity of 

tha t revision and the time it will take to complet e 

t h e rulemaking process, the FAA ha s concluded tha t 

In th e interim it make s sense to pull the exlstiug 

regulations together in one place'[5IC]. 

When one went to the FAA website months ago to view these 

regulations, it stated Removed and Reserved, nothing more, there was no 

hypertext link that would refer the investigator to further information or to a 

remote website that is now available. The now working link shows the re 

codification 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: 

"/n th e interpretation of th e languag e of 

regulations, wherv doubt exists a s to the intent of 

t h e meanin g of the languag e written an d enacte d 

by a governing bodyy the languag e shall be 

interpreted in favor of the Party an d against an y 

implied extension of a restriction". 

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ii:/ui/:^uliiu:iiAMt-A)( l^ooif/oos: 

The Complainants have taken an aggressive course of action to pursue at 

best a theoretical violation for a regulation that was removed and rescinded in its 

entirety one year before the Complainants s\jbmittcd their complaint (emphasis 

supplied). 

These regulations remain a moving target, not properly disclosed, 

scattered at different locations, not clearly interprctabie, 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, and more recently identified problematic by the 

FAA Rule makers (emphasis added), who are rewriting the regulation, thereby 

holding MRH to a double standard and a higher standard than its own FAA 

officials. 

To initiate fair prosecution, the regulations must first be un-obscured, 

not referring to a remote website, be directly visible and contained within the 

compliance statement and operation specifications, have clear wording and 

signed off by the operators, all elements not present in this case. 

In accordance to the ^'Doctrines of Equitable Tolling" an d Mutuality, 

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 

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4 . MR. BAKER IS NOT AND HAS NEVER BEEN AN EMPLOYEE 

OF RESPONDENT- MOONLIGHTER, 

Complainants cited in their briefi tha t part 121, appendi x I 

allowed employers to us e individuals to perform safety sensitive 

functions while being included in th e dru g program of anothe r employer, 

change d "July 13» 200 9 whe n appendice s I an d J were recodified''(emphasis added). The relative violation period therefore allowed 

Use of individuals on a primary employer. 

The primary premise for the violations of this case rests on the 

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

when performing safety 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 internjption by that primary employer and 

' Complainanu Brief page 2^ 2 

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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, particiiiarly part 121 appendices I and J 

pertain to "employees" of a company, which Mr. Baker was not and docs not 

include or mention provisions or exclusions for non-contraci, free lunce or 

moonlighters. As such, the citation issued must be rendered invalid and 

dismissed. 

When Ms. Ponto was asked by Judge Yoder where there was the 

requirement t o have a contrac t between a compan y an d a thir d party, it 

was responded to that pre-2004 none existed (transcript page 14, line 21). 

When asked by Judge Voder asked If ther e xvas a regulation change 

in appendix J to bar moonlighting after the amendmen t change in 2O04, 

Ms. Ponto stated, she was not sure. 

5. THE CITATION MtJST BE DISMISSED BY VIRTUE OF THE 

STAtE COMPLAINT RULE 

On July 23, 2010, Respondent was served with a Notice of Proposed 

Civil Penalty, citing a potential fme of $5400 (Fifty Four Hundred Dollars) from 

Laura Ponto for a violation that first occurred on November 2, 2007; S months 

passed the 2 year-Stale Complaint Rule -Statue of Limitations. After 

Respondent brought u p the topic of the statute of limitations. Complainant 

quickly amended the initial complaint violation using a starting date to the 

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later July 24, 2008, so that the violation appeared to have been entered just 

one day before (emphasis added) the 2 year deadline. This does not change 

the fact that the initial dales cited and therefore the starting date for the 

complaint on the violation was November 2, 2007, but the earlier date had to 

be dedacted, retrospectively in order for the complaint to come within the 

statute of limitations by one day. 

On October 25, 2010, the Final Notice of Proposed Civil Penalty cited 

the November 2007 date (2 years, 8 months later) as the first alleged violation 

as did the subsequent complaint on November 19, 2010. 

On December 13, 2010, the complaint was then amended again and 

served to respondent, this time changing the violation dates so that the>' would 

appear to fall within the 2 year statute of limitations, using only the latest date 

of July 24, 2008 and lowering the fine amount to $4400. 

6. FINANCIAL PENALTY NOT WARRANTED 

Assuming Arguendo, that there was fair cause to pursue the level of 

prosecution that ha s occurred in this case, a financial reward is not proper or 

reasonable for an LLC. that has only generated losses. When asked by Judge 

Yoder if MRH submitted financial records, Ms. Ponto stated: 

"DR SELIO WAS GIVEN THE OPPORTUNITY TO PRESENT 

FINANCIAL INFORMATION ABOUT THE STATE OF THE 

COMPANY AND HE DECLINED" (transcript page 51 . line 18) 

This statement was manifestly false as Respondent on multiple occasions 

presented the financial information to Ms. Ponto- Judge Yoder's response to 

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Ms. Ponto was tliat the profit and loss statements were submitted in the 

December 29, 2010 filing. 

On April 30, 2011, Ms. Ponto confirmed receipt of MRH's schedule C's 

2007-09, Schedules L, M. and N as requested and a s 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 finemcial losses (Exhibit L, Motion for Decision) 

bur without agreement to all terms. The tax records also confirm the name and 

financial changes in early 2008. 

During the pre-hearing conference, Ms. Ponto claimed she was not 

aware MRH was a Limited Liability Corporation (Transcript page 54, line 4) 

despite the label LLC was on all documents (approximately 60 + submitted 

documents) and she had to be reminded by Judge Yoder that MRH is a Limited 

Liability Corporation wherein the owners of this LLC ha s the liability protection 

of a corporation. A principle cannot be held personally liable for a debt. 

Therefore, all information clearly documenting company losses ha s been 

provided. This information serves to further confirm the lack of operation, not 

having performed any flights and having no income before, during and after the 

alleged violation period. 

- 19-
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12/0:/201 1 10:12AM FAX ©0020/003 2 

IV. CONCLUSION 

The citation is time barred. The proposed hypothetical violation including any 

judgment is not warranted against a company that was shut down, was 

unauthorized to conduct operations, had no income, tha t ha s terminated its 

financial accounts and the other elements set forth herein, therefore all claims 

must be immediately QUASHED, STRICKEN and DISMISSED, 

Respectfully Submitted, 

Michael B. Selig, MD. FACC. 

Date 

-20 -
12/03/201 1 13:56 FAX 2024935142 FAA - OMS !2l02l/03 2 

12/01/201 1 10.12AM FAX g|0021/0O:32 

/ 

/ 

>C. 

IOP9 

^ Inspector Statement 

On Tuesday, July 21, 2009, the FAA Inspection team (Latonya Williams and Klmmy 

Poon) conducted an inspection of M and R Helicopters, LLC's drug and alcohol 

programs. During the inspection, it was Identified that M and R Helicopters, LLC did not 

determine that Eugene Mcintosh and Edward Baker (contractors) were covered under a 

FAA-mandated drug testing program and an alcohol miguae prevention program prior to 

using their services. 

In regards to Eugene Mcintosh, the president/drug program manager of M and R 

Mellcoptera, LLC, Dr. IVlichael Selig, stated that Eugone Mcintosh was worlOng for Scott 

Richard Aviation, which is a Part 145 certificate holder that has FAA mandated drug and 

alcohol testing programs. The Inspection team visited Scott Richard Aviation on July 21, 

2009. and confirmed with Scott Richard Aviation that It does have an active drug and 

alcohol testing prograrh. It was aiso verbally confirmed through Scott Richard Aviation 

that Eugene Mcintosh Is covered under Scott Richard Aviation's programs. However. 

Eugene Mcintosh was compensated by Dr. Michael Selig and not Scott Richard 

Aviation. 

In regards to Edward Baker. Dr. Michael Selig stated that Mr. Baiter works for Flight 

Methods as a Chief Medlvac pilot. The inspection team inquired of information 

pertaining to Flight Methods from Dr. Seltg and he indicated that he did not have any 

'information such"as a telephone number or address Tor the company. A review ot the 

FAA's databases (SPAS and ICETS) did not reveal that Flight Methods has an FAA 

approved drug and alcohol testing program. Furthermore, a review of FAA's databases 

(SPAS and iCETS) also does not Identify Edward Baker, Ml as having an FAA approved 

drug and alcohol tasting program, 

^ ~ ^ '^_ 

Latonyrf^lllrams, Inspector 

Eaatern Compliance and Enforcement Center 

Drug Abatement Division 

Office of Aerospace Medicine 

I V 

FOR OFFICIAL USE ONLY — 

Public availability to be detfirmlned under 6 DSC 552 
12/03/2011 13:57 FAX 2024335142 FAA ^ OMS 12)022/032 

12i0C22/0ii:|i2 

12/01/2311 ID-12AM FAX 

U.S. Deparrment '~'^'* ^^ Aviation Meaicint 9D0 Inaopencence Ave., S.W. 

o'TransportatOn Washington. D.c. 20591 

Fedoral Aviation 

AdmlnlEhation 

APR 2 2004 

Certlflod-Return Receipt 

File Number. 2004EA910073 

Dr. Michael Selig, CEO 

M and R Helicopiers LLC 

2D45 Westgato Drive, Suite 101 

Bethlehem. PA 18017 

Dear Dr. Seiig 

On March 3, 2004, you wore Informed that the Federal Aviation Administration (FAA) was 

investigating alleged violations of 49 CFR Part 40 and 14 CFR Pari 121, Appendices I and J. 

Alter reviewing the evidence compiled dunng the inspection of M and R Helicopters LLC on 

February 26, 2004 and the documsntatJon submitted In your response dated 

March 18. 2004; it appears that M and R Helicopters LLC did not comply with all provisions of 

the Antidrug and Alcohol Misuse Prevention Programs as detailed below: 

1. IW and R Hollcoptars LLC's specimen coUoctlon procedures do not meet the 

raqulrements of 49 CFR Part 40. Specifically. 

M and R Helicopters LLC's collector {Deneae Miller/CHS 02) failed to complete Step 1 . 

Item E, Test to Be Performed, on the Federal Drug Testing Custody and Contnal Form. 

Corrective Action: At the inspection outbn'eflng, M ond R Helicopters LLC agreed to ensure the 

collector would complete Step i on the Federal Drug Testing Custody and Control Fo-m. In the 

response dated March 18. 2004. M and R Helicopters LLC submitted a copy of an Error 

Correction Training Checklist from Clinical Laboratories. Inc. documenting training for Oenese 

Miller. 

2. tW and R Helicopters LLC' B breath alcohol teeting proceduroa do not meet tho 

l-flqu/romonts of 4fi CFR Part 40. Specifically: 

M and R Helicopters LLC's Brea:h Alcohol Technician (Denese MllloryCHS 02) failed to 

complete Step 1 Item C, the Designated Employer Repreaentatl\/e, on the Department of 

Transportation Alcohol Testing Form. 

Corrective Action- At the Inspection outbriafing, M and R Helicopters LLC agreed to 

immediately ensure that tiie Breath Alcohol Technician would complete Step 1 of the Alcohol 

Testing Form. In the response dated March 18, 2004, M and R Helicopters LLC submitted a 

copy of an Error Correction Training Checklist from Clinical Laboratories. Inc. documenting 

training tor Denese Miller. 

^-fVt^r' 3k 
- (IMS 1^023/032 

12/09/2011 13'57 FAX 2024935142 . FAA • 00023/003'^ 

12/01/2011 10:^,2AH FA'X 

3. n/I and R Helicopters LLC failed to maintain records as required by 46 CFR Part 40. 

Specifically. . 

M and R Helicopters LLC's laboratory failed transmit the employer specific aggregate 

statistical summary for 2003 to the employer on a semi-annual tiasis. 

Corrective Action: At the inspection outbriefing. M and R Hailcoptera LLC agreed to 

Immediately ensure the lab vuitl send statistical summades for 20D3. in the response dated 

March 18. 2004, M and R Helicopters LLC submitted a copies of aggregate statistical 

summaries for 2003 froni LabCorp. 

This la to confirm that you have satisfactorily corrected the above issues. We have given 

consideration to all available facts and concluded that these issues do not warrant legal 

enforcement action. In lieu of such action, we are Issuing this letter, v/hich will be made o 

matter of record. We expect that in the future M and R Helicopters LLC's Antidrug and Aif:ohol 

Misuse Prevention Programs will be In compllancB with applicable regulations. 

Vincent O. Roots 

Inspector, Compliance and Enforcement 
12/09/2011 13:57 FAX 2024935142 FAA ^ - OMS gl024/032 

12/01/2011 10'12AM FA>: [2l0O24/0O:?2 

1 Earhart Drive Suite • 11 • Coatesville, PA 19320 • 484-288-2800 

www.eramediic.com 

Wednesday, November 17, 2010 

Edvtrard Baker 

5 Sarah'9 Lane 

East Stroudsburg. PA 1B302 

Dear Ed, 

Thts («Uer is being written to verify that Edward Baker was Included in ErsMED's drug 

program during his dates of employemont: 5-1 -2006 to 11 -4-2007. 

If you have any questions or concerns please contact mo at your convenience. 

Thanks, 

/flo^ n 

Meliaaa Rodriguez 

Accounting Mansgor 

nirodriguez@eramedllc.com 

BUrf :3> 
__12/09/2011 1^5 7 FAX 2024935142 FAA •. QMS 1^025/032 

12/01/201 1 10-12AM FA^ ^0025/003 2 

Page 1 of 1 

mselifl 

From: "Ed Baker" <ebaker@airmethods.com> 

To: -=m8eli9@ptd.net> 

Sent: Sunday, November 28. 2010 I0;4i PM 

Subject: FW: Edward L. Baker Ml 

From: John Hargleroad 

Sent: Thursday^ Oaober 1-1, 2010 9:45 AM 

To; chec.SEevenson@faa.gov 

subject: Edward L. Baker HI 

Chet, 

Edward L. Baker 111, SSN 158545206, has been continually in the Air Methods DOT Anti-Drug and Alcohol 

program since ll/5/'2007. He Is a pilot who also haldi a A&P certificate, however he Is under our master 

certificate QMLA253U and does not perform any maintenance under our repair station certificate QMLR253U, 

and Is not authorized or contracted by Air Methods to do any outside maintenance for M&R Helicopters or any 

other operator 

Please reply to let rne know that you have received this email. 

Regards, 

John Hargleroad 

Anli'Dnjg and Alcohol Program Manager 

PRIA Manager 

Pilot Records Supervisor 

Air iMethods Cf)rp 

7301 S Peoria St. 

Englewood, CO 60112 

Off-. 303-749-1373 

Fax: 303-749-1363 

Cell: 314-76:^2482 

i ha rgle^rp.ad <§ia." CrDstb.Qd s^jiSiED 

11/29/2010 
12/09/2011 13:57 FAX 2024935142 

12/01/2011 10-12AM F fiX 

FAA ^ DMS @i02G/032 

12)0026/0032 

•ra 

••^- ^ 

U.S DBp.irtmonl 

of TransporlBficn 

Fcdaral Avlatlor. 

AarfilnlBiraHon 

Operationu Specifications 

A449. Antidrug and Alcohol Misiiic Prevention Program H Q Control; 

IIQ RfivUlaii: 

ova:/o4 

000 

Tha ctnificaTe holder who operates under Title Id Code ofFeclcml RegulBtions (CPR) Paj-t 135 

cprtifies ihat it will comply *ilh the roquirenicnte of 14 CFR l*nn 121 A^jpendiccs I and J und 

49 CFR PHI^ 40 for ii9 Aiiiidruj; and Alcohol Miauso Prevention ProgramAiuidrug Hnd Alcohol Miauac Pievcntiori PrograTn tocovda arc maintained und ovnitHbl* toi inapcctioR 

hy tho FA A's Drug Abntcmonc Compliuncc tnd liniorcenieni InHpoctorg at ir.o locaiion listed in Table I 

be to*-. 

Tnblo 1 

ArlrJrufsi 

Aiidi-e5s: 

City: 

StHtei 

Zip code; 

LocaClon of Antidrug und AlcoliolMisusf 

I'reveiitlon Projfram Hocords: 

2045 Wogtfloio Drive 

Bcthlthtm 

PA 

18017 

Telcphune Number: 

((jIO) 769-70on 

UiniuLionH und Prftyjaiona. 

(1) Antidjog ajid Alcohol Misuse Prevention Program inspeciiuns siid en fort a n am activity will be 

conducted oxcluBivoly by iKc Diuft Abatomyiii Diviaion. All quesitoiis rcgnrding this progium 

should he directed lo [ho Drug Alj&terticnt Division. 

(2) The. certificate holdei: must implement its Awidyug ;\nd Alcohol MisuBc Prevemjon Prcigrame fuViy 

^OHccordancewith l-i CFR Pnn 121, Appoiidlcufl I und J, and 4y Ci'K Pmi40. 

(3) The ccnificBte hoMoi is rcaponaiblo for onsurirtg thai ita coiitrBciorfi vrho porfot-m safciy-seiiciiivc 

work for the ceitifjcaie holder are ffubjeciioAnlidmgand Alcohol Misuse Prevention ProgrHms. 

(4) The certificftta holder is respoHEiblo for updating ihii npcmtlons speclficfiiion when any changes 

occur in tho followinn"-

fa) Location or piionc number where the Antidiug and Alcohol Misuse Prevention Records are 

(b) Ifthe conifjcntfl holder's nuinbarof snfoty-somiiijve cmployoos goce lo 50 und nbovc, oi' lills 

bciow 50 safeiy-aonsiiivo employijos. '• ••^ • 

(5) Tho certificate holder ^'lih 50 or mote employees performing a Eflfeiy-scnsitive function on 

JnnUHty I of the cnloiidar ycarmu8iaubmit an annual report (o tho Drug Abmement Diviaiyn of the 

FAA. The cortificate holder witli fewer than 50 employees perronning a safeiy-sonsitive funcnor. 

on January \ of any calendar yearm\ists\:bmnan annual rcponuponvequcstofthe Admimstrtwr, 

ns specified in th? regulations. 

The ceitiftcaie holder has fewer than 50 S£fe[>'-senBitivc employees. 

^ P ^ PnnlDato: 8/15/2005 A14i)-1. 

M AND R HELICOPTERS LLC 

FOR OFFICIAL USE ONLY 

Public availability to b e determined under 5 USC 552 

Coilir'iCHtoNo.: MR3A020K 

r. 
12/09/201 1 13:57 FAX 2024935142 

12/01/201 1 10 13AM FAX 

FAA - OMS 0027/03 2 

10 0 2 7 / 0 Ci 3 2 

Hellcopt^rE Ific 

Anti-Drug Program Policy Receipt 

In connection wim any employment application to Helicopters Inc. (the Company), i have received a copy ot. 

read, and understand the Company's Anti-Drug Program Policy. 

In consideration of being considered for employment, I hereby acknowledge receipt of requirements pertaining to 

tne collection and testing by Uie Company or its representative of a urine sample. I understand that testing will 

be conducted lo determine the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and 

amphetamines or a metabolite ot those drugs in my system, and that the presence of such drugs will disqualify 

me from employment 

I also understand that, to work in a safety-sensitive position (as defined in K CFR Part 121 Appendix I), i will be 

subject to random, post-accident, reasonable suspicion, return-to-duty and follow-up testing, and that failure of 

any such test may result in termlnalion. 

Finally, I represent that I have never failed or refused to take a drug test conducted in accordance wilh 14 CFR 

Appendix I. 

/^"<A- ^^J ^ 6.J--

Print Name 

. • .••-_.- ^ 

=,.i^:=^^ 

' Signed 

i^o^ 

Date 

^Avt^rt 

Anti-Drug-Updated 2005.11 
r..03/20U ,3 5r F,« 20243351.2 FA. ^0«S ^^028/032^ 

12/01/2011 10: 13AI.1 FAX 

• / 

. / 135-251 M& R Helicopters, LLC. will be a member of an FAA-

•>/ approvedConsortium, or will have its own approved 

•'^''' program, with membership initiated at the time ATCO 

'^~ certificate is issued. Consortium membership will insure 

compliance with Appendices I of FAR Part 121. 

M & R Helicopters, LLC. will insure that any contractor 

who performs maintenance on its aircraft is covered by 

an FAA-Approved drug-testing program. 

135.253(a) M& R Helicopters, LLC. will comply with the provisions of 

FAR Part 135.253, in regard to employees who perform 

a function listed in Appendix J to Part 1 21 of this chapter, 

as set forth below. 

135.253(b) M& R Helicopters, LLC. will allow no covered employee, as 

described in Appendix 1 of FAR Part 121 , to report for 

duty or to remain on duty, and no covered employee shall 

report for duty for any covered position, if that person 

has an alcohol concentration of 0.04 or greater. 

135.253(c) M& R Helicopters, LLC. will not permit the use of, and no 

covered employee of M & R Helicopters, LLC, will use, 

alcohol while performing any safety-sensitive function. 

135.253(d) M& R Helicopters, LLC. will not allow, nor will any covered 

employee perform, any flight crewmember duties within 8 

hours of using alcohol. M& R Helicopters, LLC. does not have 

any covered employees other than flight crewmembers. 

135.253(e) No M & R Helicopters, LLC. covered employee will use alcohol 

for 8 hours following an accident involving an aircraft for 

which that employee has performed a safety-sensitive 

function, unless and until he has been given a post-accident 

alcohol test, or unless M& R Helicopters, LLC- has determined 

that the employee's performance could not have contributed 

to the accident. 

38 

. SfUi^i'f- j ^ 
12/09/"01 1 13-57 nx . 2024935142 FAA -^ DMS 2)029/03 2 

0 0 0 29/003 2 

12/01/201 1 10 13AM FAX 

135.253(f) Ho covered employee of M iL R Helicopters, LLC. shall refuse 

to submit to a post-accident, random, reasonable suspicion, 

or follow'up alcohol test required by Appendix J of Part 1 Z'l 

of this chapter; and M&R Helicopters, LLC. will not permit 

any employee who refuses such a test to perfornn any safetysensitive function. 

'135.255(a) M&R Helicopters, LLC. wilt furnish lo the FAA a certification 

& (b) statement, and will implement a formal Alcohol Misuse 

Prevention Program, in accordance with Appendix j of 

Part 121, no jater than the start of operations under 

FAR 135. All M & R Helicopters, LLC, employees who • 

perform a safety-sensitive function will be subject to 

testing for alcohol misuse in accordance with Appendix J 

of part 121-

39 
12/09/2011 13:58 FAX 2024935142 

12/01/201 1 10.13AM rAK 

FAR Pai't 1.^5 Sec. 135.251 offeclive AH of 07/1.^/2009 

FAA r OMS a030/03 2 

(210030/0032 

l".ttp'.//i£l.fad.gov/Ke.gul.ilory_dnd_C;uid(\ncii_Library/igP/= 

RGLHoine 

Code of Federal Regulations 

'•"Sec, 135.251 

Part 135 OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND 

OPERATIONS AND RULES G0VERNIN(5 PERSONS ON BOARD SUCH 

AIRCRAFT 

Subpart E--Flight Crewmember 

Requirements 

Sec. 135.251 

[Removed and Reserved] 

Amdt. 135-117, Eff. 7/13/09 

i Comments 

"^Document History 

Notice of Proposed Rutemaking Actions: 

Not Applicable. 

Final Rule Action^: 

Final Rule. Docket No. 2009-0937; Issued on May 7, 2009 

FAA.gov Home I Prlvbc/ policy I W«b rollcl«a Bi Notlc«« I CantaA Ufl 1 Hotp 

AeadArs & Viewers: PDF Peadei- i MS Word viewer • MS PowerPoint Viewer i MS Txcel Viewer i Zip 

l o f 1 

f^.M 7 

5/T3/2in') <vfi4 AN 
12/03/201 1 13:58 FAX 2024935142 

12/01/201 1 10:i3ftM fh'ti 

l^AK Port 135 Sec. 135.255 effective, as of D7/13/2009 

FAA ^ DMS 21031/032 

{210031/003:' 

http://rgl.fHa.gov/Kegulalory.. and_Guidanco_Librijry/igFy 

--Sec. 13S.255 

Part 135 OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND 

OPERATIONS AND RULES GOVERNING PERSONS ON BOARD SUCH 

AIRCRAFT 

Subpart £-Flight Crev^member 

Requirements 

Sec. 135.255 

[Removed and Reserved] 

Amdt. 135-117. Eff. 7/13/09 

1 of 1 ^/•\o/•>f\^ ^ f^n' \ A t 
12/09/2011 13:58 FAX 2024935142 

12/01/2011 10•13AM FAX 

FAA ^ DMS !2]032/032 

2)0332/003 2 

U.S. DEPARTMEN T O F TRANSPORTATIO N 

Federal Aviation Administration 

Complainant 

V . 

M fc R Helicopters, LLC, 

Respondent 

Honorable Judg e Richard 

Qoodwln 

Docke t : 2010-121 1 

CERTIFICATE OF SERVICE 

r HEREBY CEkTlFY that 1 have this day served the foregoing entrie(a): 

RESPONDENT'S BRIEF SUPPORTING THE MOTION FOR DECISION TO 

DISMISS COMPLAINT 

upon all parties of record in this proceeding, in accordance with the requirements of Rule 29 

pursuant to 28 U. S. C. § 1746 . 

Service bv Email and Fax 

Federal Aviation Administration 

800 Independence Avenue, SW 

Wilbur Wright Avenue-Suite 2W1000 

Washington, D.C 20591 

Att: Hearing Docket Clerk. AGC-430 

FAX 202 493 5142 

Charlca Rulcy 

Enforcement Division/AQC-300 

Office of the Chief Counsel 

FAA 

800 indcF>endcnce Avenue, SW 

Washington, DC 20591 

FAX 202 267 5106 

The Honorable Richard C. Goodwin 

US Department ofTransportation 

Office of Hearings, M-20, Room El 2-320 

1200 New Jersey Avenue. S.E. 

Washington. DC 20590 

KAX 202 366 7536—noi working 

Email patricia.maH.he.wstiijdot.eov 

By:_ Electronically signed MBS 

Michael B. Selig, MD, FACC. 

2816 Orefield Road 

Allentown, Pa. 18104 

610 360 3953 

Date: ^:^S ^ (^{^ \^y[ ^ 

fM^^^