•^, ,o/^^I r 14.SI FAX 2024335142 

08/03/201 1 7:01AM FAX 

FAA - DMS {^001/01 2 

10001/0 0 12 

Michael Sclie, MD. FACC, CFI-H 

2816 Orefield Road 

AUentown. PA. 18104 

August 9, 2011 

.'IrRARTMENTOF 

• •-•Oi^C;; OPERATIONS 

7M\\ l^iQ 2 2 A q: 0 1 

U.S . DEPARTMEN T O F TRANSPORTATIO N 

OFFIC E O F HEARING S 

WASHINGTON , D.C. 

Federal Aviation Administration 

Complainant 

M & R Helicopters, LLC. 

Respondent 

V . 

Honorable Richard Goodwin 

Docket: 2010-121 1 

RESPONDENT'S REPLY TO COMPLAINANT'S MOTION TO COMPEL 

DISCOVERY 

AND NOW, comes respondent, MlCHAKL B. SELIG, MD, FACC. 

principle for MR Helicopters, LLC, (MRH) (non-operational, no pilot and with no 

income ^sincc before violation issued) whom avers and files the following reply 

to MOTION to COMPEL DISCOVERY. 

1. On December 2, 2010, respondent's motion to compel discovery was faxed 

and mailed to complainant. 

2. Complainant never provided the requested specific regulations, language, 

details, and references with regard to the specific regulation changes that 

had occurred. 

3. On October 22, 2010, respondent was served with an incomplete 

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Enforcement Investigative Report which included several altered, redacted 

and spoliated documents. The unaltered documents were requested and 

the references cited concerning document and evidence withholding. 

4. On October 27, 2010, a letter was faxed and addressed to complainant 

requesting a complete copy of all the regulations referenced in her 

complaint, inclusive of adoption dates, changes and revision dates to 

confirm prior statements made on behalf of the parties. 

5. In the leuer of October 27, 2010, respondent requested full, unaltered 

c^opies of documents that were produced in the incomplete Enforcement 

Investigative Report (EIR), that were either stricken, blocked out, redacted 

or spoliated. 

6. In the letter of October 27, 2010, it was requested to provide the reference 

of Jordon v Department of Justice tha t complainant cited in her 

correspondence and how each specific reference directly applied to each 

specific redacted part of the EIR. There was no response. 

7. In the letter of October 27, 2010. it was requested to provide the reference 

for policies on disclosure restrictions. 

8. In ihe letter of November 24, 2010, the above items were requested a 

second time. 

9. As part of the discovery requests, respondent also reasonably requested 

the depositions of Ms Williams and Ponto, subsequently denied. 

10. It is respondents averment that denying the depositions of the two 

individtaals above, whom initiated the violation under different 

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circumstances and the other who carried the case for over a year, writing 

all the correspondence in a docket that has approximately 100 entries, 

limits respondents ability to build a proper record and properly litigate his 

case and therein limiting his due process. 

11. At this time the respondent will relate to the evidence already in the record 

as the case speaks for itself 

12. Factual witness Edward Baker will appear for testimony. He will cite his 

aviation history and history of the Drug/Alcohol programs. His statements 

are already in the record. 

13. The respondent hereby requests the following of complainant, 

a) Provide copies of ail documents intended to be introduced a s evidence in 

this case, that are not already in the record. 

b) A complete list of each and every person intended to be called as a 

witness or expert witness, to give testimony or will be present on behalf 

of the agency. 

c| Title, occupation, employer, business address, curriculum vita, license 

and certification numbers, educational background and complete 

credentials, of all persons who will be present at the hearing, 

d) The nattirc of the stated testimony to be provided (factual, witness or 

expert witness), by each individual, the subject matter upon which each 

witness is expected to testify, the nature of knowledge possessed by each 

witness and the facts to which each witness is expected to testify. 

e^) Provide copies of any and all statements made by the witnesses 

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identified in response to the interrogatories concerning, referring, or 

involving the circumstances set forth in the complaint. 

f) Approximate time of testimony of each individual. 

g) Other data requested before and as listed above in 2-7. 

Respectfully Submitted, 

Michael B. SeUg, MD. FACC. CFNH 

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FAA - DMS 0005/01 2 

[2|OC05/0012 

MichacISelig. MD, FACC, CFI-H 

2816 Orefield Road 

AUentown. PA. 18104 

August 9, 20 n 

U.S . DEPARTMEN T O F TRANSPORTATIO N 

OFFIC E O F HEARING S 

WASHINGTON , D.C. 

Federal Aviation Administration 

Complainant 

V. 

M & R Helicopters, LLC. 

Respondent 

Honorable Richard Goodwin 

Docket: 2010-121 1 

RESPONDENTS REPLY TO JULY 29, 201 T PLEADINGS BY COMPLAINANTS 

INADEQUATE DISCLOSURE AND INTERPRETATION OF THE 

MOVING TARGET REGULATIONS 

HOLDING RESPONDENT TO A HIGHER STANDARD THAN ITS OWN FAA 

OFFICIALS 

Equitable Tolling and Mutuality 

AND NOW, comes respondent, MICHAEL B, SELIG. MD, FACC, 

principle for MR Helicopters, LLC. (MRH) (non-operational, no pilot and with no 

income since before the violation was issued) whom files the following Reply to 

the July 29, 2011 Pleading by Complainant, regarding the inadequate listing 

and disclosure, shifting and variably operating website hypertext links and 

interpretation of the regulations complainants cited for the alleged civil penalty. 
08/19/201 1 14-51 FAX 2024935142 FAA ^ DMS [glOOG/012 

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1. Respondent for the reasons set forth in prior pleadings believes the alleged 

civil penalty ha s many procedural defects and complainant ha s continued 

With prosecutorial overreaching, unrelenting tiling and their crusade to 

squander recourses at a time of unprecedented governmental debt. 

2. It is respondent's averment that the cited violation was initiated for a rime 

period when MRH was not even in operation and therefore is frivolous from 

the onset. 

Changed, Confusing. Removed and Reserved Regulations 

3. It was discovered that the 2 regulations that the agency was violating the 

respondent for: §135.251 and §135.255, were so confusing, inconsistent, 

contradictory and problematic that the FAA rule makers removed these 

regulations on July 13, 2009. one year prior to complainants even filina 

their complaint against respondent, perhaps unbeknownst by the 

complainants or lacking candor to the tribunal. 

4. Regulations §135.251 and ^135.255, were so confusing, inconsiatent, 

contradictory and problematic that the FAA rule makers decided to 

remove, revise, relocate and essentially btiricd these regulations. 

5. When one went to the FAA website months ago to view these 2 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 recodification of §135.251 to §120.35 and § 135.255 to § 120.39, adding 

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new meanin g t o th e Moving Targe t an d Slilffcing natur e of thos e 

regulations. Now the compliance with this regulation even appears 

dependent on whether a computer software hypertext link works or not 

(emphasis supplied), 

6. Complainant revealed that there was a policy change of 14 CF.R. part 121 

Appendences I and J that occurred in February 2004, requiring 

mechanics to be on a company specific drug program. 

7. MRH was not notified of any regulation changes 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 

AUentown FSDO. 

8. FAA Officer, Frank Allota, the operations inspector of MRH for 7 years was 

not aware of this regulation changes. 

9. In fact, none of the management personnel at the AIlentowTi FSDO, 

including the manager. Mr. Wadsworth were informed of the regtiladon 

change during that 5 year period as well. 

10. The respondent was audited by FAA Drug/Alcohol abatement officer Mr. 

Vincent Roots in April 2004, after the first regulation change occurred, 

who himself was also never informed of its own in-house regulation chans^e 

and therefore unable to inform MRH of the regulation change. 

11. Additionally, there were several factors clouding the clarity and full 

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disclosure of these regulations, since regulations were not clearly 

contained, listed, spelled out or in a forthright manne r evident within the 

signed off compliance statement and operational specifications, thereby 

hidden, concealed and not forthright. 

12. The complainan t is therefore trying to hold the responden t to a 

higher standar d tha n their own FAA oflicers, who were also unable to 

follow their own MOVING TARGET REGULATIONS. 

13. In addition, the regulation §135.255 (before it was removed along with 

§135.251) referred to the ccrtilicatc holder "and" operator. The use of the 

conjunctive "and" indicated that 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. 

14. Therein, there were several matters concerning clearness and 

interpretation of the language and meanings contained within the signed 

off compliance statement and operational Hpecificaiions, thereby 

encouf.agine violation and entrapment, rather than effective ancj forthright 

compliance in the spirit of safety. 

t In Administrative Law "/n the interpretation 

of the languag e of regulationSy wh^re doubt 

exists a s to the intent of the meanin g of the 

languag e written and. enacte d by a governing 

body, th e language shall be interpreted in 

favo r of th e Part y an d against an y implied 

extension of a restriction" . 

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Operationa l Specifications 

15. It is respondent's averment that the regulations cited for the alleged 

violation was not clearly stated or written, word for word in the compliance 

statement or operation specifications page A449-1 an d 2» even when it 

was current. 

16. New Operational Specifications requirements mandate further defmition of 

tei-ms that arc clearly written in an authorized, signed, conllrmed 

document, without remote site references or internet linking to outside 

items or sources. They now require pertinent Part 91 regtilation material 

text to be written and included in the signed document. 

17. The operation specifications page A449-1 a,nd 2, that appeared in the 

Enforcement Investigation Report demonstrated that the document was 

signed off and agreed to with Corlhright disclosure, in January of 2004, 

before the definition of employers was changed and oth^jr changes in the 

regulations had occurred. 

IS. Since the regulation changes occurred after the signed disclosure; the 

respondent did not know or have discovery, was not informed by any 

method nor formally agreed to the changes and thereby should be held 

harmless. 

19. It is respondent's averment thai l.he scant references to the monitoring 

program on page A4-49-1 and 2 which were not disclosed forthright in 

specificity of regulations referenced and did not specifically display the 

details of the regulations, but only through a hike by further internet 

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12)0010/0013 

search and inquiry could the regulations be identified a.3 removed and 

reserved. 

20. One can only premise from the data readily and reasonably available, that 

a mechanic, who is on a monitoring program by whatever employer, would 

indicate compliance. 

2 1. The full Drug/Alcohol abatement program regulations were not clearly 

written out, and the methods of compliance are not similar or follow suit 

to the procedures that exists for its operations and maintenance 

regulations. 

22. It is respondent's averment thai without a notification process, it was 

impossible to know of a random changed regulation, unless first locating 

the regulations and second sifting through hundreds of pages of 

regulations while randomly comparing new regulations side by side to old, 

noting differences, an impractical and time consuming process, fraught 

with error. 

23. There is no sign off procedure for the abatement program as there is for 

the operations and maintenance compliance protocols, clearly dehneating 

in spelled out written format and then confirming knowledge of all the 

regulations change s by signature authorizaiion and even return of the 

old, replaced voided operation specifications vo an FAA representative. 

24. In order to fairly violate an operator, the regulations must first be unobscurcd, not referring to essentially some fine print on a remote website, 

be directly visible and contained within the compliance statement and 

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operation specifications, have clear wordmg and signed off by the 

operators, all elements not present in this case. 

25. 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 did not discover until after the change occurred. This is the 

jurisprudence and reason why changed sections the Operation 

Specifications arc revised periodically and signed off by affecting parties to 

confirm discovery of those changes. 

26. It is respondent's averment and request hereto, that the allege violation 

process is flawed, in complete violation of justice and the complaint be 

closed. 

WHERBPORE, the respondent prays that this Honorable Court will dismiss the 

complaint before trial as the evidence for proper prosecution fails short. 

Respectfully Submitted, 

Michael B. Sclig, MD, FACC. \ \-y 

Electronically signed—mbs 

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^0012/001 2 

U.S . DEPARTMEN T OF TRANSl*ORTATlO N 

Federal Aviation Administration 

Complainant 

V. 

M 4& R H«Uoopters, LLC. 

Respondent 

Honorable Judg e Klcbaid 

Goodwin 

Docke t : 2010-121 1 

CERTIFICATE OF SERVICE 

1 HEREBY CERTIFY ihal I have this day served the foregoing cntric(s): 

RESPONDENTS REPLY TO JULY_29. 201 1 PLEADINQQ BY COMPLAINANTS 

INADEQUATE DISCLOSUKE AND INTEkPl^ETATlON OF THE 

MOVING TARGET REGULAT[ONS 

HOUDING RESPONDENT TO A HIGHER STANDAHD THAN ITS OWN FAA OKKICIALS 

Equitable Tollmg and Mutuality 

RESPONDENT'S REPLY TO COMPLAINANT'S MOTION TO COMPEL DISCOVERY 

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

purauanl to 23 U. S. C. § 1746 . 

Service by firai-das? mail, postage prepaid, addre3se(j a9 foUows: 

F'ederaJ Aviation Administration 

800 Independence Avenue, SW 

Wilbur Wright Avenuc-3uitc 2W1000 

v/ashingron, D.C. 20591 

Art-. Hearing Docket Clerk, AGC-430 

^^>AX202 493 5142 

C-harlns Raley 

t'-nforcemcnl. Division/AGC-300 

Office of the Chief Counsel 

FAA 

BOO Independence Avenue, SW 

WashinRton, DC 20591 

t^'AX20 2 267 5106 

The Honorable Richard C. Goodwin 

US Dcparcment of Transportation 

Office of HearingB. M-20, Koom E12-.120 

1200 New Jersey Avenue. S.E. 

Washington, DC 20590 

l'"AX 202 366 7536—noi working 

L-^mail patrLcia.matthewagdot.gov 

By:_ Eleclronicfilly signed MBS M [ g [f/ 

Michael a Sclig, MD, PACC . '•'' 

2816 OreiieM Road 

AUentown, Pa. 18104 

610 360 3953 ^ —^^- f f 

n 

Date: _Q^AJA.V