# In the Matter of:



# Fisher Scientific Company, LLC

October 4, 2016 Pretrial Conference

Condensed Transcript with Word Index



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1 OFFICE OF HEARINGS

2 U.S. DEPARTMENT OF TRANSPORTATION

3

4 In the Matter of: )

5 FISHER SCIENTIFIC COMPANY, LLC ) No. FAA-2015-1321

6 --------------------------------)

7

8 TELEPHONIC PRETRIAL CONFERENCE

9

10 Tuesday, October 4, 2016

11 10:00 a.m.

12 The Honorable Douglas M. Rawald

13 Administrative Law Judge

14

15 ON BEHALF OF THE FAA:

16 GERALD ELLIS, ESQ.

17

18 ON BEHALF OF THE RESPONDENT:

19 JERRY COX, ESQ.

20

21

22

23

24 Reported telephonically by:

25 Karen Guy, CER

2

1 P R O C E E D I N G S

2 (10:12 a.m.)

3 JUDGE RAWALD: Okay. If can go ahead and go on

4 the record.

5 This a prehearing conference in the case of

6 Fisher Scientific Company, LLC, docket number FAA-2015-

7 1321.

8 This is Administrative Law Judge Doug Rawald.

9 Today’s date is October 4th, 2016. On the call is

10 Respondent’s Counsel, Mr. Jerry Cox, also on the call is

11 the Government attorney, who is appearing apparently on

12 behalf of the Government counsel, Ms. Andrea Harper,

13 whose appearance is not -- isn’t explained, or her

14 failure to appear has not been explained yet.

15 Mr. Ellis is not a Counsel of record on the

16 case, although I do know he signed a filing on behalf of

17 Ms. Harper when she failed to respond herself to the

18 notice regarding a response to a show cause order, which

19 Mr. Ellis filed back on May 31st of this past year.

20 Also joining me in my office is an attorney

21 advisor, Ms. Jackie Booker.

22 Okay. Let’s hear first from Mr. Ellis. Mr.

23 Ellis, where is Ms. Harper today?

24 MR. ELLIS: Ms. Harper has a recurring illness

25 and I have not heard from her today, so I’m assuming that 3

1 whatever the issue is with her is the reason she’s not

2 appearing.

3 I’m the managing attorney for the Southern

4 team.

5 JUDGE RAWALD: Are you familiar with her

6 caseload, sir?

7 MR. ELLIS: I’m sorry?

8 JUDGE RAWALD: Are you familiar with her cases,

9 sir?

10 MR. ELLIS: I’m somewhat familiar with this

11 case.

12 JUDGE RAWALD: Okay. I do know that you did

13 indeed sign a filing, that’s right? Correct, sir?

14 MR. ELLIS: Yeah, I’m authorized to sign

15 filings for all the attorneys in this office.

16 JUDGE RAWALD: Okay. So when signing that

17 filing you at least reviewed the case file at some point,

18 to sign that filing, correct?

19 MR. ELLIS: That’s correct.

20 JUDGE RAWALD: Okay. So do you feel prepared

21 to argue this motion now, sir?

22 MR. ELLIS: I am not prepared, but I will do

23 the best I can to do so.

24 JUDGE RAWALD: Okay. Because it is my intent

25 to have arguments on the motion today, because we have to

4

1 have this hearing, it’s been quite a while. Both parties

2 told me they can’t go any further in this case until we

3 have argument on this motion. And while I understand Ms.

4 Harper is sick, certainly as the Government’s lawyer, she

5 has the ability to let people know what’s going on with

6 her cases, if she has a recurring illness. Hopefully Mr.

7 Ellis can work with her and have somebody get up to speed

8 on her cases for when she is not able to be prepared or

9 present for arguments, Counsel.

10 Okay. So, Mr. Cox, that being said, what I

11 would like to do is you have raised the issue, so I’d

12 like to hear from you first.

13 And so, folks, understand what we’re hearing

14 today is that on --

15 MR. ELLIS: Hello?

16 JUDGE RAWALD: Yes, hello. On June 23rd, 2015,

17 Mr. Cox responded on behalf of the Respondent, he filed a

18 motion to dismiss the complaint for insufficiency and for

19 violation of Rule 208. The Government replied on August

20 7th, 2015, and then Mr. Cox filed a reply brief on

21 December 21st, 2015.

22 So what I’d like to hear about today is the

23 insufficiency issue and the Rule 208 issue and I’d like

24 to hear argument on this issues separately.

25 So, Mr. Cox, if you could, please, first talk

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1 to us about the insufficiency issue and why I should 2 admit this case for being insufficiently pled. 3 MR. COX: Judge, if I might just make a 4 suggestion. 5 JUDGE RAWALD: Okay. 6 MR. COX: I really am respectful of your time. 7 I would hope that FAA would be respectful of other 8 people’s time, but the shortest distance between any two 9 points is a straight line. And I have pending a motion 10 to strike Southern Regional Counsel’s purported response 11 to your show cause order. I think writing a decision 12 based on -- for you, in terms of your time, if you are 13 prepared to strike that pleading and to move under 14 CFR 14 Section 13.215, there’s no reason to even consider a 15 motion that was filed 16 months ago. 16 JUDGE RAWALD: I understand, Counsel. I’m not 17 going to go ahead and pick up an issue of sanction at the 18 moment. I’m not prepared to do that. 19 What I want to focus on first is the threshold 20 questions of whether or not the Government sufficiently 21 pled their case. So if you could please talk on the 22 insufficiency issues, I’d appreciate it. 23 MR. COX: All right. How much time, Judge, are 24 you allocating to each side? 25 JUDGE RAWALD: As much time as you need, sir.

6
1 MR. COX: Okay. Again, being respectful of 2 your time, I would ask for 20 minutes, and for the 3 opportunity to reserve whatever balance when I’m finished 4 stating the argument, whatever is left over, I would 5 reserve that for rebuttal, if that’s okay with you, 6 Judge. 7 JUDGE RAWALD: That’s fine, sir. What my 8 intent is, is to allow you to argue, allow Mr. Ellis to 9 respond, and allow you to reply. And then I will ask 10 questions of both parties as they’re arguing, so I prefer 11 not to keep it on a clock, because it may be my questions 12 draw you over. I don’t plan on keeping a clock here. 13 But if you can go ahead and proceed, sir, I’ll listen to 14 what you have to say about insufficiency. 15 MR. COX: Okay. Would you like for me to 16 review the history of the proceeding or are you familiar 17 with that? 18 JUDGE RAWALD: No, that’s fine, sir. If you 19 could just get to the heart of the matter and explain why 20 the complaint was insufficiently pled. 21 MR. COX: Okay. I think the heart of the 22 matter is that they didn’t follow your show cause order. 23 But the answer to your question is that they failed to 24 state a claim. The FAA, in order to -- under the 25 statute, in order to proceed to collect a civil penalty, 7
1 the FAA or Southern Regional Counsel, actually, has to 2 allege what is required by the scienter requirement, 3 which is a knowing violation, or more specifically, an 4 act, that they knowingly committed an act that violates 5 the hazardous materials regulations. 6 And the complaint, going back almost two years, 7 what they said in the complaint was that the Respondent 8 knowingly offered a package that has HAZMAT in it and 9 that is not a sufficient basis to collect a civil 10 penalty. They are required to argue that the Respondent 11 knowingly violated a regulation and there’s not even so 12 much as an allegation of that. 13 And all of this, five years worth of 14 proceedings that we have been through and all of this 15 waiting around for FAA attorneys to actually respond to 16 things, has come about because of this filing that was 17 completely -- ignored the regulations completely. 18 And then would you also like to hear about the 19 Rule 208 violation that was also covered in that same 20 motion? 21 JUDGE RAWALD: No, I want to focus on the 22 insufficiency issue. So tell me, sir, what exactly would 23 they have had to do to perfect their complaint? What are 24 they missing that they did not have in there? 25 MR. COX: Okay. What they said in the

8

1 complaint was that Fisher Scientific knowingly offered a 2 package containing hazardous materials. If that’s the 3 case, then all these multiple millions of packages that 4 are put in commerce are necessarily a violation of the 5 regulations. 6 What they need to allege, what the statute 7 requires them to allege, isthat Fisher knowingly did 8 something, committed some act that violated the hazardous 9 materials. Those are two completely different things, 10 which is exactly what scienter requirements are all 11 about. 12 JUDGE RAWALD: Sir, what you’re intimating is 13 you’re talking about Paragraph 1 of Section 2 of their 14 complaint, where they use the word knowingly. That’s the 15 only place in the complaint that I find. That’s the part 16 you’re saying is knowingly. And you think they should 17 actually have a knowingly somewhere in Paragraph 10 where 18 they’re describing the violations, then? Is that -- 19 would that be required, sir? 20 MR. COX: They have to say at some point the 21 pleading that there was a knowing violation of the 22 statute. It’s not me that said that, it was Congress 23 that said that. It was actually enacted in 1975 and when 24 they amended it in 1990, they did a little tweak to the 25 scienter requirement to ma ke it clear that knowingly does

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1 not mean recklessly. And that’s the only issue that 2 Congress confronted in the 1990 amendment was what is the 3 scienter requirement. And Congress made it really clear 4 that the scienter requirement is that if you are in a 5 position where you should know better, there’s something 6 you’re not putting in the packaging that you should put 7 in the packaging -- either you knew it or you should have 8 known it, then you could be liable for a civil penalty. 9 There’s nothing in the statute that establishes 10 strict liability and, in fact, my thoughts -- Senator 11 Jack Danforth of Missouri, actually got the U.S. Senate 12 to pass a provision, to pass a bill that would have taken 13 the scienter requirement out altogether. The House 14 objected to that. The House bill passed, the House bill 15 was signed into law. 16 So no matter how you slice it, there has to be 17 some allegation in the complaint that Fisher Scientific 18 did something negligent. And it’s not there, Judge. 19 JUDGE RAWALD: Right. So let’s be clear. So 20 what does he have to know? Does he have to know the 21 material they’re shipping is hazardous? Or do they have 22 to know that what they’re doing is, in fact, a violation. 23 That what they’re doing, by failing to use the proper 24 packaging, is a violation? What exactly are you saying? 25 MR. COX: Well, what I’m saying is that you

10

1 don’t even -- if it’s not hazardous, you don’t have 2 anything else to do. But in this case, one of the 3 problems is that people like Mr. Ellis have never 4 bothered to read the file. Ms. Harper told me she had 5 never bothered to read the file -- 6 MR. ELLIS: Objection. Objection. 7 JUDGE RAWALD: I understand, sir. I’m not 8 going to worry about these -- I mean, I appreciate your 9 desire, Mr. Cox, to advocate for your client, but there’s 10 no reason to go ahead and make personal attacks, sir. 11 So you go ahead and continue, sir, and explain 12 to me what exactly are you saying that -- what is the 13 knowledge requirement of? Do they have to know what they 14 are shipping? Or, do they have to know that what they 15 are shipping because of the way they have packaged it, or 16 failed to package it, constitutes a violation of the 17 statute? 18 MR. COX: They have to commit an act that 19 violates the statute. In this case, they offered a 20 package that they knew contained hazardous materials and 21 they did it completely in accordance with the Hazardous 22 Materials Regulations, because, for a lot of other 23 reasons, this was a limited quantity shipment and they 24 complied with all of the regulations and the exceptions 25 that apply to limited quantity shipments. 11
1 The problem was with the original complaint, 2 was that the FAA Regional Counsel drafted the notice 3 based on 2013 regulations, which established a half liter 4 limit for a bottle of lye, which was the case here. They 5 established a half liter limit in 2013, but the limit in 6 2011 was one liter. And this was a one liter shipment. 7 So what they would have to show is that -- and 8 again, I don’t even know what to do with that when their 9 allegation is based on regulations that were not in place 10 at the time of the shipment, what’d they have to show is 11 that knowing that they were shipping a bottle of lye and 12 that it is hazardous material, there was something they 13 were supposed to do with the packaging and -- the 14 allegation that came up three years later was that they 15 were supposed to have a absorbent material inside the 16 package. 17 And so they would have to have known or should 18 have known -- either knew or should have known -- that 19 absorbent material was required in the packaging. That 20 allegation is not in the complaint. 21 JUDGE RAWALD: Mr. Ellis, do you have any 22 response to the argument from Counsel? 23 MR. ELLIS: Yes. The definition of knowingly 24 is defined in the statute 49 USC Section 5123(a) and it’s 25 whether the person has actual knowledge of the facts

12

1 giving rise to the violation or a reasonable person 2 acting in the circumstancesand exercising reasonable 3 care would have that knowledge. Okay. 4 That has -- the evidence used to support that 5 has always been whether the person, a reasonable person, 6 would know they were offering a HAZMAT for 7 transportation. Those facts are pled here -- 8 JUDGE RAWALD: Mr. Ellis, just to be clear, so 9 your position would be that the FAA only has to allege 10 and prove that there’s knowledge that the materials being 11 shipped themselves are hazardous. Is that right? 12 MR. ELLIS: Yeah, a reasonable person acting in 13 the circumstances would know that it was a hazardous 14 material. 15 JUDGE RAWALD: Okay. Go on, please, sir. Did 16 you have more you wanted tosay, Mr. Ellis, before I cut 17 you off? 18 MR. ELLIS: Well, I think he’s alleged that 19 that is not pled, but it is pled. It’s pled in every FAA 20 notice and complaint. 21 JUDGE RAWALD: So what you’re saying is this 22 Paragraph 1 of Subsection 2,where you say that knowingly 23 offered to UPS the one-piece shipment consisting of a 24 specification fiberboard box containing hazardous 25 materials for transportation by air is the standard way

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1 you approach these issues? 2 MR. ELLIS: Yes. In fact, by saying -- and I 3 believe Counsel will admit that it was a limited quantity 4 -- a limited quantity indicates that it is a hazardous 5 material. A limited quantity of hazardous material. So 6 he has admitted it’s a hazardous material. 7 JUDGE RAWALD: And I don’t want to get into the 8 limited quantity issue, because it seems to me it could 9 be an affirmative defense more than it is to an issue of 10 insufficiency of a pleading at the moment. 11 The question really is, Counsel is saying that 12 you had to allege more knowingly than what there is. 13 You’re saying that you have alleged knowingly as required 14 by the law and that’s sufficient. 15 MR. ELLIS: Right. 16 JUDGE RAWALD: Do you have any cases, Mr. 17 Ellis, for what your position is? Are you aware of any 18 cases from the Administrator or from the Federal Court? 19 MR. ELLIS: I recall seeing cases a while ago, 20 years ago. I’ve been doing this for quite a while, but I 21 couldn’t -- I couldn’t quote to you the exact case that 22 says that. But I do remember we started pleading the 23 word knowingly in all our notices and complaints 10, 15 24 years ago. 25 JUDGE RAWALD: Okay. And so, Mr. Cox, turning

14

1 to you, are you aware of any cases from the Administrator 2 or from a Federal Court on this issue of hazardous 3 shipping? What’s your position about what’s required for 4 the pleading? 5 MR. COX: No, Judge, I don’t think it’s even 6 been necessary for anybody to broach it, because Congress 7 made it really clear. I would have to point out in this 8 case that of course Fisher knew that this was hazardous 9 material, that’s why they declared it as hazardous 10 material, that’s why they followed the regulations that 11 said what you do with a limited quantity -- which one 12 liter was in 2011. And that is what FAA has failed to 13 say, is that there was some negligence, some error on 14 Fisher Scientific’s part. Because under Mr. Ellis’ 15 argument, absolutely every single hazardous material 16 shipment, even when it’s a knowing shipment and properly 17 declared, violates the hazardous materials regulations 18 and leads to a fine. 19 MR. ELLIS: That’s not our argument. 20 MR. COX: That’s all I’m hearing. 21 JUDGE RAWALD: Let me -- Mr. Ellis, hang on one 22 second. 23 So, Mr. Cox, from what I understand the way the 24 Government approached this is, is they are alleging that 25 the Respondent or the person knowingly did something. 15

1 And the knowingness is required -- and they described the 2 violations, which the violations themselves -- or the 3 regulations don’t have a knowing required, but you have 4 to knowingly commit the violation in order to be able to 5 collect a civil penalty by statute. 6 Is that what you’re articulating, Mr. Ellis? 7 MR. ELLIS: Yes. 8 JUDGE RAWALD: Okay. Mr. Cox, with that frame 9 of reference, does that alter your argument? I don’t 10 think it does, but I just wanted to make sure that you 11 are on the same page. That’s what I understood the 12 Government’s argument to be. 13 MR. COX: Well, what Congress said, what is 14 really obvious, even with the tweaks that they did in 15 1990, is that there is no civil penalty for anyone who 16 did not knowingly commit the act that violated the 17 hazardous materials regulations. 18 There is no allegation here that Fisher 19 Scientific committed any act -- knowingly committed any 20 act that violated the regulation. This was a declared 21 shipment. And it was declared the way it was supposed to 22 be declared and if FAA thinks it wasn’t declared the way 23 it was supposed to be declared, they need to allege that. 24 And it was packaged as this shipment was required to be 25 packaged.

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1 And if FAA thinks that a civil penalty is due 2 because of the way it was packaged, they are obligated 3 under the statute to at least allege that Fisher 4 Scientific knew they were doing it wrong or should have 5 known they were doing it wrong -- which isn’t very hard 6 for the largest shipper of speciality chemicals and lab 7 equipment in the world. 8 The standard for them would be different, the 9 standard from me or the court reporter or somebody else 10 who makes some kind of a shipment, you know, they might 11 -- you know, that’s what Congress intended was to make 12 sure the civil penalties were not available in situations 13 where people did everything they could possibly do to try 14 as hard as they could possibly try to understand 1,400 15 pages of gobbledygook regulations. 16 In this case the regulations are relatively 17 clear. They say what’s supposed to happen with a limited 18 quantity, as to how it’s to be declared and how it’s to 19 be packaged. Fisher Scientific followed those. And, 20 like I said, if FAA disagrees and thinks that they didn’t 21 follow those, they need to allege that they knowingly 22 failed to follow those. 23 JUDGE RAWALD: Okay. Understood. So I think I 24 understand both parts of the issue very well. I 25 appreciate your arguments on the issue.

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1 Let’s turn to the 208 then issue. So, Mr. Cox, 2 if you could, please tell me what is the 208 concern 3 here? And if you want to go into any sort of background 4 of facts, I understand that you may have had some 5 discussions that may not have made it into the record 6 with Mr. Vine, who was on the case before you, anything 7 you think may help you. I’ll certainly listen to those. 8 So just go ahead and plead, tell me what you 9 think I need to know about this issue. 10 MR. COX: Well, again, to be respectful of your 11 time, I think it’s pretty obvious that if you skim 12 through the original notice you don’t see any mention of 13 absorbent material. 14 When I pointed out at an informal conference 15 with Mr. Vine, that he had grabbed the wrong copy of the 16 CFRs when he wrote the original notice, when he was 17 trying to hold them responsible for the rules that apply 18 to 2013 and not in 2011, he just decided to throw in this 19 extra claim, and it was more than three years after the 20 limit that is established under an FAA statute. I don’t 21 know what else to say about it. 22 JUDGE RAWALD: Okay. Mr. Cox, if I could just 23 understand a little more. So you’re arguing the whole 24 complaint should be dismissed based upon the fact that 25 this one violation itself may have been altered over

18

1 time. You would agree that at least two other violations 2 that were pled in the notice of proposed civil penalty -- 3 have made their way into the complaint, right, sir? 4 MR. COX: Yes, but they depend on this stuff 5 that was added three-plus years later. 6 JUDGE RAWALD: Okay. So they are so 7 intermingled that there’s no way to pull them out? 8 MR. COX: No, there isn’t. And I think that if 9 even -- what I’m saying, I guess, is even if you were to 10 limit your holding to just throw out the absorbent 11 materials claim, there’s nothing left in the complaint, 12 anyway. So either way you get to the same answer, I 13 think. 14 JUDGE RAWALD: Okay. And why is that, sir? So 15 explain to me more why the 173.24 violations which are 16 alleged are intermingled so much with the 173.27(e) 17 violation? 18 MR. COX: If I remember correctly, without 19 taking the time to look up those specific sections -- I’d 20 be happy to do that if you want -- it talks about there 21 being -- about it being improperly packaged. And there’s 22 nothing, there’s no allegation of any improper packaging, 23 other than the allegation that there was no absorbent 24 material included. 25 But if you’d like, I can go back to the 19

1 specific regulation or I can file a supplemental document 2 if that would be helpful to you. 3 JUDGE RAWALD: Well, I’m just -- I’m looking at 4 the complaint here and I see the facts are alleged in 5 Paragraphs 1-9 and Paragraph 10 with the three violations 6 the FAA says should be resulting from those facts. 7 And I don’t understand how as a matter of law 8 173.24(b)1 and 173.24(f)1 can’t be found by a trier of 9 fact, without finding a 173.27(e) claim as well. So that 10 sounds like what you’re saying. Is that if I can’t find 11 that they met 173.27(e) that there’s no way I can deal 12 with those other two complaints, those two violations. 13 MR. COX: Can you give me just a moment, if you 14 would, Judge, to take a look at the complaint. Now, I 15 may need to dig the regulations out, because one has to 16 look back five or six different times even to find a 17 straight -- a plain English sentence in many of these 18 cases. 19 I’m sorry, you were asking about 173.27(e)? 20 JUDGE RAWALD: Well, so Paragraph 10-A and 21 Paragraph 10-B, which are unchanged from the notice of 22 proposed civil penalty that was offered within two years 23 of the date of the alleged violation, the alleged 24 violation of Section 123.24(b)1 and Section 123.24(f)1. 25 And what I’m wondering, sir, is why, when I dismiss those

20

1 if the C Paragraph of Paragraph 10 was improperly brought 2 after the two-year time period by notice -- by an amended 3 notice of proposed civil penalty. 4 MR. COX: I’m not looking at Section 5 123.24(b)1, but I am looking at the complaint. And it 6 says that Fisher failed to use a package which was filled 7 and closed, so it was under conditions normally used in 8 transportation, there would be no identifiable release. 9 I don’t know what they’re talking about there, 10 other than absorbent materials. 11 MR. ELLIS: Shall I? 12 MR. COX: Well, at a minimum, Judge -- I think 13 that at a minimum, Judge, what this means is that if this 14 case does proceed, the first thing we would probably do 15 would be to have to ask for a more definite statement, 16 because I really can’t tell what they’re talking about, 17 other than -- the only real allegation of anything 18 omitted from the packaging is the absorbent materials. 19 JUDGE RAWALD: Okay. But, Mr. Cox, the central 20 question I have is, if Paragraph 10-A and Paragraph 10-B 21 are identical to what was pled in notice of proposed 22 civil penalty within a two year timeframe, why then must 23 I dismiss those if the Paragraph 10-C of the complaint 24 was made untimely, in your opinion? 25 MR. COX: The answer again is more a practical

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1 issue, perhaps, especially with respect to 10-A and that 2 is what’s left of their case, if the absorbent materials 3 were not required. They can’t allege that the absorbent 4 materials were required, but not in there, because of the 5 fact that that’s out of time. That allegation was out of 6 time. I don’t know what’s left and I would need a more 7 definite statement from them to know. 8 JUDGE RAWALD: Right. But I think that would 9 go more squarely towards an issue of motion for decision 10 or something else, as opposed to simply me saying, well, 11 Paragraph 10-C was pled out of time, so, therefore, you 12 can’t bring your violation or 10-A or 10-B. 13 I’m just having a mental barrier in trying to 14 understand why we’re dismissing an entire complaint when 15 only one part of the violation is alleged or possibly 16 alleged out of time, sir. That’s what I’m trying to get 17 help on. 18 MR. COX: And in our pleading we made it really 19 clear that if for any reason you have that problem then, 20 at a minimum, what’s required under the statute is that 21 you dismiss Paragraph 10-C. And if that’s what you do 22 and if you find that A and B were timely and C wasn’t, 23 then you are obligated, I think, to strike C, and you’ll 24 have to proceed from there. 25 But like I said, I don’t know that there’s any

22

1 case. Perhaps Mr. Ellis can tell us what the case is, if 2 an absorbent material was not required or he’s not able 3 to allege. I mean, they may decide not to put you on the 4 spot, Judge and make you answer that question and make 5 you figure that one out, because they may decide for 6 themselves that there’s no case law. 7 JUDGE RAWALD: So, Mr. Cox, a couple of 8 thoughts before we turn to Mr. Ellis. So 173.27(e), the 9 allegation of violation in Paragraph 10-C, you believe 10 that that was changed in some way from the notice of 11 proposed civil penalty, the amended notice. What was the 12 key change there? It sounds like you’re saying the 13 absorbent material language is what you thought was the 14 key change. 15 MR. COX: Well, Judge, if you just read the 16 original notice, the words, absorbent materials don’t 17 even appear there. I mean, how much clearer can it be? 18 JUDGE RAWALD: Okay. You wouldn’t read that in 19 the actual regulation text, that section titled absorbent 20 material, correct, sir? 21 MR. COX: That doesn’t mean it was mentioned in 22 the original notice. 23 JUDGE RAWALD: Okay. But, sir, they did 24 provide notice they were alleging a violation of Section 25 173.27(e), which if you look up in the CFR would say 23

1 absorbent material and then provide the explanation. So 2 you would agree with that, right? That the regulation 3 has had that language. 4 MR. COX: Well, they offered a reason -- they 5 offered an allegation of a supported violation, but if it 6 were knowing -- supported violation, Section 173.27(e) 7 and did not mention absorbent materials. So, I mean, one 8 can argue that, you know, Subchapter C, you know, 9 violation of Subchapter C. 10 But that doesn’t really give the other party 11 any proper notice and that’s what that statute was all 12 about. Congress was very clear on that one as well that 13 FAA has two years and that it cannot just get around to 14 making these allegations when they feel like it, they 15 have to do it within the two years to avoid violating 16 that -- you know, requirement that Congress -- this is 17 not something that was up to FAA. Congress put this in 18 there because FAA had already been in the habit of once 19 they issue these boilerplate notices and then when they 20 figured out that they had done something off the mark, 21 something wacky, like use the wrong version of the CFRs, 22 then just make up a whole new notice. Congress said no 23 to that. And I think that that would be the only fair 24 thing to do for the Respondent, would be to follow 25 Congress’ wishes.

24

1 JUDGE RAWALD: Okay. So how -- let me make 2 sure I understand correctly. 3 So the FAA initially adopts the two-year scheme 4 in their regulatory program when they did have the test 5 program, and then Congress followed the FAA’s example and 6 did it in the statute to affirm what the FAA had already 7 started, correct, sir? 8 MR. COX: I’m sorry, Judge, could you repeat 9 that? Just the first part. 10 JUDGE RAWALD: The FAA first started this 11 program as a prototype to see if they could make it work. 12 And they adopted that two-year scheme as part of their 13 prototype of attacking these cases. And then Congress 14 said, okay, we think this program is working, let’s make 15 it into a statute, they then followed the FAA’s example 16 and adopted the two year timeframe. 17 That’s the historical part of this, I think, 18 sir. So -- 19 MR. COX: No, I do not agree with that. I 20 think what happened here is you had the underlying 21 statute, the hazardous materials regulations and you had 22 FAA doing exactly what I said, doing something wacky like 23 filing boilerplate stuff without bothering to read, you 24 know, what they were making allegations about and then 25 finding out that they were off the mark. And then

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1 showing up, you know, three, four, five years later with 2 new allegations. And when Congress saw that happening -- 3 and that was implementation of hazardous materials 4 regulation, not necessarilyFAA regulations or FAA 5 statutes, what happened was Congress looked at it and 6 said, good heavens, I mean, this is crazy, nobody’s going 7 to remember anything three years down the road. Or, in 8 our case, more than five years down the road. Nobody’s 9 going to remember what happened, evidence gets destroyed 10 -- in this case, it has been destroyed, Mr. Vines 11 acknowledged that. And -- 12 MR. ELLIS: Objection. 13 MR. COX: Well, you can object all you want, 14 but I can read you this letter. Have you read it? 15 JUDGE RAWALD: Let’s not get off the mark here, 16 folks. Let’s focus on what’s happening here, which, you 17 know, I want to focus on whether this is out of time or 18 not. 19 So, Mr. Cox, I think what we were getting at is 20 that there are many reasonswhy Congress wanted to adopt 21 the two year statute of lim itations, because of the fact 22 that it would affect the ability on your client’s part to 23 defend their case. Is that correct, sir? 24 MR. COX: And it would also be a waste of 25 Government resources like your time, Judge.

26

1 JUDGE RAWALD: Okay. So, Mr. Ellis, what can 2 you say in response? Why is this not a violation of Rule 3 208? 4 MR. ELLIS: The notice was delivered on time. 5 Respondent was advised of all the allegations that are in 6 the complaint. What he’s arguing about is the amendment 7 to the complaint that happened later on. 8 You have three -- as you recognized, Judge, it 9 says three violations, three regulatory violations 10 alleged in the complaint, 173.24(b)1 is for the release 11 of the material, okay? First of all, that’s a separate 12 matter than the packaging itself, at least in terms of -- 13 at least regarding the sanction that’s alleged in this 14 matter, and is certainly a separate regulation unto 15 itself, as is 173.24(f)1, which is about the closures and 16 the problems with the closures. 17 His issues with 173.27(e), which, you know, is 18 what he’s arguing about, but as you say, the regulation 19 itself clearly provides sufficient notice to the 20 Respondent about what is being alleged here. The -- 21 JUDGE RAWALD: Well, I didn’t say that, 22 Counselor. I just pointed out what the language of the 23 regulation was, because I’m trying to understand what I 24 would consider in my opinion. 25 What I want to be clear about is -- so 27

1 Paragraph 10-C in the complaint does reflect the language 2 in the amended notice of proposed civil penalty, which is 3 substantially different than the language in the proposed 4 civil penalty notice initially a year earlier. 5 MR. ELLIS: Go ahead. 6 JUDGE RAWALD: So why was there a change there, 7 Mr. Ellis? What’s the reason for changing the language? 8 MR. ELLIS: The reason was because the 9 particular -- the language in the particular regulation 10 was changed. But the facts that were pled did provide 11 sufficient notice that there was an issue with the 12 packaging, which is the central part of the complaint. 13 JUDGE RAWALD: Tell me more about that. So 14 what is changed in the regulatory language? So is it as 15 Mr. Cox framed the issue, in that the folks writing the 16 complaint and adopted the language in a more current CFR, 17 rather than what was applicable at the time of the 18 offense? 19 MR. ELLIS: I mean, the specific language in 20 the HMRs change every now and then, and in this 21 particular case it changed from the time it was 22 originally pled, and then when the notice was originally 23 issued it didn’t track the language in the new version of 24 the regulations, and it was amended to reflect that. 25 However, the pleadings themselves, the notice,

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1 the facts in the notice, clearly support the regulations 2 and that has not changed. Therefore, there has been no 3 two year violation here. 4 JUDGE RAWALD: And so -- 5 MR. ELLIS: I mean, you could amend -- you can 6 amend a complaint down the line when different -- after 7 discovery or in the process. But the original notice was 8 timely. 9 JUDGE RAWALD: Okay. You can amend the 10 complaint within certain limitations, though, I mean, 11 sir. 12 MR. ELLIS: Yes. Yes. And this was not 13 sufficiently changed to create any kind confusion in the 14 mind of the Respondent. In fact, another -- in fact, 15 another informal conference was granted specifically for 16 that purpose, just to makesure each side understood what 17 was -- what the change was and what was going to be 18 alleged. 19 JUDGE RAWALD: Mr. Cox points out this is the 20 first time the language absorbent material appears in the 21 notice, though, in the amended notice. And that was not 22 pled in the initial notice -- 23 MR. ELLIS: Usually all we say is that the 24 package was not properly declared for air transportation. 25 JUDGE RAWALD: But the --

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1 MR. ELLIS: There’s a number -- there’s a 2 number of regulations that -- 3 JUDGE RAWALD: Mr. Ellis, will you hold on one 4 second? So what I’m getting at is, so Mr. Cox points out 5 the fact that the words absorbent material, the term 6 absorbent material, was not in the initial notice of 7 proposed civil penalty. It was added in the amended 8 notice of proposed civil penalty, which was after the 9 initial notice. 10 So does that term, adding it, does that make a 11 substantive difference to the Government’s allegations? 12 MR. ELLIS: No. 13 JUDGE RAWALD: Why not? 14 MR. ELLIS: Because that particular regulation 15 is involving the type of inner packaging that’s involved, 16 the original version of it says something to the effect 17 of when you offer a package containing hazardous liquids 18 and probably some packing Group 1 or 2, Class 3, 4, 6, 8, 19 whatever it was -- in glass, earthenware, plastic, metal 20 inner packaging. When you fail to use a means of 21 containing the liquid, you know, in the form of a plastic 22 bag or other efficient form of containment, that’s -- 23 that’s the basic allegation in the regulation. And that 24 hasn’t changed. 25 JUDGE RAWALD: And so is the Government going

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1 to offer up the requirement of absorbent materials here 2 in this case, as part of proving the fact that there was 3 a violation of the -- 4 MR. ELLIS: That would be what we provide 5 evidence for and argue. 6 JUDGE RAWALD: Okay. And so in your initial 7 notice of proposed civil penalty you were not going to 8 offer up evidence of the absorbent material? 9 MR. ELLIS: Yes,we would have. Yes, we would 10 have. We would have provided evidence of the entire 11 packaging, photos and testimony and other evidence, which 12 has already been provided to Respondent. 13 JUDGE RAWALD: Okay. 14 MR. COX: Not true. 15 JUDGE RAWALD: Mr. Cox, if I’m listening 16 properly, then so what you view to be the most salient or 17 the most important issue here in the way that the 18 complaint was alleged and the way the amended notice was 19 drafted, is that addition of the language “absorbent 20 material.” Is that right, sir? 21 MR. COX: As far as the 208 violation is 22 concerned, Judge, yes. 23 JUDGE RAWALD: Yes, the 208, yes, sir. And so 24 tell me why that is -- why that is unfair to your client? 25 Why does that put them in a position where they are no 31

1 longer able to defend the complaint properly, as they 2 would have as it was originally alleged back before the 3 two years was reached? 4 MR. COX: Judge, the whole point of having the 5 FAA do stuff promptly is to make sure that evidence can 6 be preserved. We didn’t find out until more than three 7 years after the incident and after -- probably two or 8 three months after the amended notice was filed that FAA 9 destroyed or allowed the destruction of the material that 10 was packaged, the boxes and material that was surrounding 11 the bottle at issue here. 12 MR. ELLIS: We never keep that evidence. 13 JUDGE RAWALD: Right. Mr. -- Mr. Ellis, I 14 understand your concern, but we have heard, in fact, that 15 Mr. Vines told Mr. Cox they never keep that evidence. So 16 that’s not necessarily unique to this case. What is a 17 fair point, Mr. Cox, to raise the point that they didn’t 18 have the evidence they would otherwise need in keeping 19 with the idea of the statute of limitations. And, 20 certainly, it could be a defense that I hear in going 21 over the evidence. 22 But, Mr. Cox, what is the -- so because 23 absorbent material was added a year later after the 24 original notice of proposed civil penalty, how would your 25 client put on a situation where they otherwise would not

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1 have been fairly put on notice? I’m just saying because 2 they weren’t able to see the material, they didn’t have 3 the material. Anything else besides that fact, which we 4 know the material is always destroyed, so that was 5 unfortunate on all parts, but anything else, sir? 6 MR. COX: Judge, I would just say that all of 7 the evidence here is stale as can be. Anybody who was 8 involved in this, if they’re still alive -- and at least 9 one of the people involved in this case has died in the 10 last five and-a-half years. And, you know, the whole 11 point of this, what Congress did not want was for you, as 12 a Judge or for the FAA Chief Counsel to have to deal with 13 stale claims. And they can’t get any more stale at this 14 point under either the two year statute of limitations 15 for FAA or the five year statute, which I hope we’ll have 16 a chance to address here in a few minutes. 17 But I would like to point out to correct what 18 Mr. Ellis said about Paragraph 10-A in their complaint. 19 He said, oh, that’s got nothing to do with packaging, 20 that’s -- 21 MR. ELLIS: I didn’t say that. 22 MR. COX: Well, whatever you said it will be in 23 the transcript, I presume, so what I would like to do is 24 to just, you know, read what’s in 10-A, what FAA alleged 25 was about Section 173.24(b)1, quote, Fisher failed to use

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1 a package which was designed, filled and closed, so that 2 under conditions normally incident to transportation 3 there would be no identifiable release. 4 That’s about the packaging and absorbent 5 material is -- the whole point of having absorbent 6 material is for circumstances where there is a leak, not 7 true in this case, but where there was a leak and to 8 prevent it from actually getting outside the box. And 9 that’s -- he’s really underscored the importance of 10 striking Paragraph 10-A, aswell as 10-C. And like I 11 said, I don’t know what they’ve got left with 10-B. 12 They’d have to make that decision. 13 MR. ELLIS: I can provide all that if you allow 14 me to, Judge. I’ll wait my turn. 15 JUDGE RAWALD: Well, if you could, Mr. Ellis. 16 So, Mr. Cox, as I said, so my major concern would be the 17 Paragraph 10-A and Paragraph 10-B violations. They are 18 identical to what was alleged in the notice of proposed 19 civil penalty, and so to defend something based on a Rule 20 208 violation, I’m not certa in how I would get there. 21 And I can understand that the argument possibly for a 22 motion for decision, or another type of relief, was based 23 upon the out of time nature, the Government wasn’t 24 required to allege a 173.27(e) violation or to allege 25 those other two violations.

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1 And so, I don’t see how I can dismiss those two 2 initial violations based upon the 208 Rule. 3 MR. COX: Well, Judge, I just don’t -- I don’t 4 know what 10-A means if it doesn’t mean absorbent 5 material. I don’t know what that means. 6 JUDGE RAWALD: Yes, sir. And so, certainly, if 7 you want to file a motion from defense, maybe we could 8 deal with that after. 9 What I’m focused on is the Rule 208, which is 10 the bar for bringing things that were not brought within 11 the initial two years of the actual incident. And so 12 there is no dispute, it’s on the record clearly, that 10- 13 A and 10-B are identical to what was in the initial 14 notice of proposed civil penalty. There’s nothing new 15 there. 16 Now, sir, there are facts alleged in the 17 complaint that are seemingly identical, except for 18 Paragraph 4 and Paragraph 5, in the amended complaint, 19 from the amended notice of proposed civil penalty and not 20 what was in the original notice of proposed civil penalty 21 -- anything about those facts being different, what’s 22 your argument about dismissal, sir? Mr. Cox? 23 MR. COX: Judge, I just keep going back to what 24 Congress had in mind and what the agency laid out in 25 incredible detail in their notice of proposed rulemaking 35

1 to implement it. And that is that all of these kinds of 2 questions, what the heck do these things mean? You know, 3 you sign a whole bunch of paragraphs and subparagraphs 4 and clauses and whatnot. 5 In order for you, as a Judge, in order for a 6 Respondent as a Respondent even, to understand what the 7 heck it is we’re arguing about, those allegations need to 8 be made on a timely basis and two years is the time limit 9 that Congress set, two years is the time limit FAA set. 10 And to allow this to proceed -- and certainly 10-C, no 11 question about 10-C -- to allow this to proceed would 12 violate the letter and the spirit of what Congress said 13 was to be done here and what the FAA said was to be done 14 here when they promulgated the regulation. 15 JUDGE RAWALD: I understand. But I want to be 16 very granular, because I’m required to look at this and 17 see what was new and whether the what’s new is of any 18 sort of depth. 19 And so I look at Paragraphs 4 and 5 of the 20 complaint. I see allegations as drafted of factual 21 concern that are not the same as what was in the 22 complaint. So they are -- they mirror only the amended 23 the notice of proposed civil penalty that was in the 24 original notice of proposed civil penalty. 25 Would you argue, sir, those changes in the

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1 language that are found in Paragraphs 4 and 5, are those 2 material or are they not, sir? 3 MR. COX: I’m going to have to take a look at 4 the complaint. Again, this was so long ago, it’s rather 5 buried in the file, so would you mind giving me a moment? 6 JUDGE RAWALD: That’s fine. 7 MR. COX: I’m not looking for the complaint, 8 I’m looking for the original notice. Sorry, the amended 9 notice. 10 JUDGE RAWALD: I’m comparing the complaint to 11 the original notice of proposed civil penalty. 12 MR. COX: The original notice, okay. That’s 13 where it is. The notice dated July 3, 2013. Is that 14 correct? 15 JUDGE RAWALD: Yes, sir. 16 MR. COX: Okay. I’m sorry, your question was 17 about Paragraph 4 in that July 3, 2013 notice? 18 JUDGE RAWALD: Well, no. Paragraph 4 of the 19 complaint and Paragraph 5 of the complaint are the only 20 factual allegations in Paragraphs 1 through 9 of the 21 complaint that are different than what is found within 22 the notice of proposed civil penalty from 2013, sir. 23 Are those differences of note or are they not? 24 MR. COX: Okay. I need a minute to read them. 25 JUDGE RAWALD: That’s fine. And, Mr. Ellis,

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1 I’m going to ask your opinion on that, too, so you might 2 as well look at it while he looks at it. 3 MR. ELLIS: I am looking at it right now, sir. 4 JUDGE RAWALD: Okay. 5 MR. COX: Judge, I have two responses to that, 6 one -- 7 JUDGE RAWALD: That’s Mr. Cox, correct? Just 8 for the record. 9 MR. COX: Exactly. Yes. Sorry about that. I 10 don’t mean to be a broken record, but these factual 11 allegations are so stale I don’t know how anybody is 12 going through them and that’s really what 208 is all 13 about. 14 But more specifically to answer your question, 15 Paragraph 6 in the notice of proposed civil penalty, it 16 says that Fisher altered the shipment, when it failed to 17 insure friction type closures were securely tight and 18 effectively held in place by positive means. 19 Well, Judge, friction type closures is a cork. 20 There were no corks involved in this case at all. And 21 when we had the informal conference, it was clear that 22 this was just boilerplate. 23 MR. ELLIS: Objection. Misstated. 24 JUDGE RAWALD: Hold on. Hold on a second, Mr. 25 Ellis. Mr. Cox, please go on.

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1 MR. COX: This notice was just boilerplate. 2 All it did was repeat something that some other notice 3 said that was got sent to somebody else, and left it for 4 the Respondent to deal with. And when he did deal with 5 it in the informal conference -- 6 JUDGE RAWALD: Well, Mr. Cox, I’m not concerned 7 with that Paragraph 6, though, because it did not make 8 its way into the complaint. So whatever advocacy you did 9 in the pre-process, before it got to the complaint 10 apparently was effective, because Paragraph 6 is not 11 showing up in the complaint. 12 What I’m concerned about are things in the 13 complaint that would be untimely, because they were not 14 contained within the initial notice. And Paragraph 4 and 15 Paragraph 5 contain language that was not in the initial 16 notice. So the question is, is the language that’s now 17 in the complaint, Paragraphs 4 and 5, is that new beyond 18 the two-year period or is that merely nonmaterial from 19 what was originally pled in the original notice of 20 proposal civil penalty? 21 MR. COX: I think what’s crucial, Judge, is 22 that there is a factual dispute about 4 and 5. 23 JUDGE RAWALD: Okay. 24 MR. COX: And that they were alleged, 25 regardless of when they were alleged, that is something 39
1 that if you ever want to spend three days hearing about 2 limited quantity exemptions and so forth, then we will 3 end up going there. But that’s really -- if they think 4 that’s a good use of their time, then that’s going to be 5 completely up to you and to them. 6 But, you know, their allegation that there was 7 a leak, in and of itself, is not really a basis for the 8 complaint. The allegation that one liter of lye was in 9 there, is not a basis for the complaint because it was a 10 limited quantity of one liter. That was the limit for a 11 limited quantity in 2011. 12 And so, are those new allegations in the 13 complaint? I would probably say no, they’re not new 14 allegations, but they’re not anything that -- you know, 15 the basis for this and the basis for these constituting 16 violations is something that is not in the complaint. It 17 was not in the amended notice and, you know, that 18 complaint -- again, you know, like I said, if you take 19 10-C out, if that’s all you think you’re allowed to do, 20 Judge, under Rule 208, then I think it’s going to have to 21 be up to FAA to decide whether they really have anything 22 in 10-A and 10-B. 23 That’s about as much as I can say about it, 24 except that it is completely unfair and I think probably 25 even a due process violation to expect Respondents to

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1 deal with stuff like that. When we get around to having 2 a hearing in this case, it will be six years after the 3 incident. And like I said, at least one of the people 4 involved just passed away. 5 JUDGE RAWALD: Okay. And turning to you, Mr. 6 Ellis, so these changes or this new language that was 7 added to Paragraph 4 and 5 that were not in the original 8 notice for proposed civil penalty, is that anything 9 material that would violate Rule 208? Or do you think 10 it’s not? 11 MR. ELLIS: No, we don’t. It is not material, 12 Your Honor. The original notice was sufficient for, you 13 know, everything that we’re alleging now. We actually 14 amended the notice for the benefit of Respondent, because 15 he was making these same kinds of argument, that he 16 didn’t understand what was happening. 17 So the effort was to make it more clear to 18 Respondent. 19 JUDGE RAWALD: Okay. So in your opinion, 20 Paragraphs 4 and 5 are merely making more clear things 21 already existed in -- 22 MR. ELLIS: Yes. 23 JUDGE RAWALD: -- the notice of proposed civil 24 penalty? 25 MR. ELLIS: Yes. The hazardous material

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1 involved is the sodium hydroxide material, the Class 8 UN 2 1824, if you -- if you go to the hazardous materials 3 table, it will tell you exactly how it’s regulated, so 4 that’s really the essence of those two paragraphs. 5 JUDGE RAWALD: Okay. And, so, Mr. Cox, would 6 you agree or disagree with Mr. Ellis? 7 MR. COX: I’m not entirely sure what he just 8 said, other than I would just point out that in the 9 amended notice, 4 and 5 changed. That was filed more 10 than two years after the alleged incident. And they 11 changed from the original notice, to the amended notice, 12 to the complaint. So I’m not sure which of those they 13 are saying -- which one he’s saying was fair notice to 14 Respondent that they needed to be -- 15 MR. ELLIS: The Paragraph 4 in the original 16 notice which -- 17 JUDGE RAWALD: Mr. Ellis, hold on one second. 18 So, Mr. Cox, my question is, obviously the language in 4 19 and 5 are different in the complaint than what they were 20 in the original notice, 4 and 5 in the complaint mirror 21 what’s in the amended notice. 22 What I asked of both parties was whether the 23 changes to 4 and 5, were in any way material such that 24 the Respondent was put unfairly on notice, so that would 25 be a Rule 208 violation. Mr. Ellis said, no, no, no, 4

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1 and 5 were simply amended to make more clear what 2 originally was in Paragraph 4, which was one sentence and 3 they turned it into three or four sentences to explain 4 more about that in response to your question at the 5 informal conference. 6 And so I guess, sir, my question is do you 7 think that 4 and 5 are actually new facts or are they 8 merely making more clear what’s already existent in the 9 notice for proposed civil penalty from 2013? 10 MR. COX: Clearly, new facts. Especially if 11 you have in front of you amended notice of proposed civil 12 penalty file July 24, 2014, Paragraph 4 is still talking 13 about corks. This case has nothing to do with corks. 14 JUDGE RAWALD: Right. But it didn’t make its 15 way into the complaint, sir, so I’m not going to worry 16 about it. If it’s not in the complaint, it’s not an 17 issue. So it’s really not an issue. 18 I understand the Government can certainly drop 19 things from the notice of proposed civil penalty and not 20 make it in the complaint. In fact, they dropped 21 admittedly half their violations in the complaint stage, 22 so they initially alleged six violations in 2013, in the 23 complaint there’s only three. 24 So, obviously, the advocacy was effective at 25 some point because you were able to at least get some of 43

1 those violations off the table here. 2 So -- okay. So that’s all the questions and 3 concerns I have on the insufficiency and the 208 issue. 4 Now, Mr. Cox has mentioned the fact that he’s 5 also asked or mentioned three other bases, I’m not going 6 to take argument on those issues today. I’m really 7 focused on the procedural issues, which are at the very 8 threshold for issues under the regulations that go to 9 whether the case exists or not. And then we can discuss 10 more about the possible sanctions or other things down 11 the road. 12 But at this moment I am not going to look at 13 that. I want to look at these threshold issues and get 14 those out, dealt with, in my opinion first. That’s what 15 I’m looking at. 16 So with that understanding, Mr. Cox, do you 17 have anything else you want to bring up? 18 MR. COX: Judge, I would simply like to note 19 for the record, my objectionsthat everything that Mr. 20 Ellis said is required under Rule 11 to be stricken, 21 exactly for the same reason that the supposed response to 22 your motion -- I’m sorry, to your order to show cause 23 should be stricken. And that is going to be an 24 independent issue, I guess, because the rules are really 25 clear in Rule 11, that it has to be counsel of record.

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1 There’s nothing in the response that -- there’s 2 no typewritten information as to who signed that supposed 3 response, whether that’s Mr. Ellis’ signature or not, I 4 don’t know. But there are a lot of factual allegations 5 made that are just flat untrue. 6 And if Ms. Harper is not willing to put her 7 signature on that and risk sanctions for telling, as she 8 calls them, mistruths, then I don’t think that it’s 9 really right for a Respondent to have to deal with an 10 attorney who is not of record in the case. And I would 11 object to that. 12 JUDGE RAWALD: Okay. And, Mr. Ellis, let me 13 turn to you. So, there is a complicating factor here, in 14 the fact that Ms. Harper has been noticeably absent from 15 the proceeding. She didn’t file anything in response to 16 my initial notice requiring the parties to meet and 17 confer; she did not file herself the response to notice 18 for show cause, you filed that for her; and she has not 19 appeared today. 20 This is a problem, Counsel. There needs to be 21 someone from the FAA who is on this case and ready to 22 prosecute this case, because I’m proceeding with this 23 case, I’m moving this case forward either way. And 24 if the FAA wants to not abandon this case, they need to 25 assign someone to this case who is going to be taking

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1 part in the case. 2 And if Ms. Harper can’t take part in the case, 3 you need to think about who else you want to assign to 4 the matter, sir. 5 MR. ELLIS: I hear you loud and clear, Your 6 Honor. 7 JUDGE RAWALD: Yes, sir. And so I would think 8 about that further. 9 And as for Mr. Cox’s concerns, I will take them 10 under advisement and I’ll consider whether or not to 11 consider them. 12 But I do appreciate everyone showing up today 13 and discussing these issues, they are important. I 14 will -- 15 MR. COX: I have a question, Judge. 16 JUDGE RAWALD: Yes, Mr. Cox? 17 MR. COX: Are you denying my motions? Any of 18 my motions to dismiss? 19 JUDGE RAWALD: I have not made any rulings on 20 any motions at this point, sir. So what I’m doing at the 21 moment is I’m taking these first two issues after 22 argument under advisement and I will work on issuing an 23 opinion. 24 I will then look at the other issues you have 25 raised more intensely and decide what to do about those

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1 issues. 2 I do not plan on having argument on those 3 issues, but if I do, upon reviewing them further, think 4 additional briefing or argument necessary, I will let the 5 parties know. 6 No, I understand your position on all three of 7 those issues and I will look at them further and then 8 decide what I’ll do with them. I haven’t made any 9 decision yet, Mr. Cox, in the short term. 10 MR. ELLIS: Your Honor? Your Honor, I have a 11 question. 12 JUDGE RAWALD: Yes. 13 MR. ELLIS: Will we receive a copy of this 14 transcript? 15 JUDGE RAWALD: Well, so the transcript will 16 come -- I think it then gets passed to the docket, but 17 I’m not sure. But I will make sure that all parties 18 receive a copy of the transcript once we get one, yes. 19 MR. ELLIS: Thank you, Your Honor. 20 JUDGE RAWALD: Okay. Mr. Cox, so -- just so 21 you understand, what I will do is I will go ahead and 22 issue a written order regarding these two motions alone 23 and then look at the other three issues further. I don’t 24 think there’s anything in those, despite your concern, 25 that will be worth my looking at before I dispose of 47

1 these two very essential and baseline issues that need to 2 be dealt with. 3 So, Mr. Cox, any further questions from me? 4 MR. COX: No. Just I want to be clear that 5 you’re going to -- it’s your intention to hold in 6 abeyance the motion to strike and the motions to dismiss, 7 including the motion to dismiss on mootness, because of 8 the five year statute of limitations. 9 You’re going to decide upon the issue about 10 whether the pleading meets the sufficiency requirements 11 before you decide whether the case is moot in the first 12 place. 13 MR. ELLIS: How in the world would the -- I’m 14 sorry. 15 JUDGE RAWALD: Yes. The reason why I’m doing 16 that is because first of all, you raised the issue very 17 recently of the Government hasn’t had a chance to brief 18 it and I think also that I really want to deal with this 19 very baseline issue that exists in the regulations 20 there’s a reason for having a case dismissed. I mean, 21 these are -- these are things in the regulation that 22 exist as possible reasons a complaint can be dismissed 23 and responses allowed by that answer. So I want to get 24 those squared away. 25 And then I will look at your new issue you’ve

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1 raised, and, if necessary, ask for briefing from the 2 Respondent -- or, excuse me, the Complainant to respond 3 to what you raised there, as far as the three or the five 4 year statute, sir. 5 MR. COX: As long as I understand. Thank you. 6 JUDGE RAWALD: Okay. And so, Mr. Ellis, just 7 so you understand, Mr. Cox did file something last week, 8 raising the fact that there are several other issues he 9 thinks that the case needed to be dismissed because of, 10 one of which is a five year statute of limitations. 11 I do ask that you not spend any time responding 12 to that until I direct that you do in a briefing, okay, 13 sir? 14 MR. ELLIS: Yes, Your Honor. 15 JUDGE RAWALD: Okay. So any other questions 16 for me, mr. Ellis? 17 MR. ELLIS: No, Your Honor. 18 JUDGE RAWALD: Okay. Last chance for any 19 questions, Mr. Cox. 20 MR. COX: Just to note that the rules require 21 the FAA to respond within, I think it’s 10 days to the 22 motion to strike. 23 JUDGE RAWALD: I understand, sir. But I do 24 have some flexibility as far as being a Judge and 25 dictating how the schedule of events goes. And so --

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1 MR. COX: I understand, sir, but only if 2 they’ve asked for an extension. If you take a close look 3 at the regulations, they have to ask you for an extension 4 and state a reason why. 5 JUDGE RAWALD: Sir, given my current posture in 6 this case, I don’t want briefing on the issue, not right 7 now. So I will look more at your issue. But I am 8 stating here the Government should send a brief in 9 response to your motion to strike at the moment. 10 MR. COX: Understand. I understand. 11 MR. ELLIS: Yes, Your Honor. 12 JUDGE RAWALD: Anything else for us to discuss? 13 (No response.) 14 JUDGE RAWALD: Okay. At this point, let’s go 15 ahead and -- I appreciate everyone taking the time today 16 and giving me some good argument on the issues. So we’ll 17 go ahead and go back and look at how we’re going to 18 decide this case and then we’ll let you know in a written 19 opinion how I decide these two issues and then what’s the 20 next step in this case. 21 So thank you for your time and let’s go ahead 22 and go off the record. Thank you. 23 MR. ELLIS: Thank you, Your Honor. 24 (Whereupon, at 11:05 a.m., the hearing was 25 concluded.)

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1 2 CERTIFICATE OF REPORTER 3 4 I, Karen Guy, hereby certify that the foregoing 5 proceedings were recorded by me via digital recording and 6 reduced to typewriting under my supervision; that I am 7 neither counsel for, related to, nor employed by any of 8 the parties to the action in which these proceedings were 9 transcribed; and further, that I am not a relative or 10 employee of any attorney or counsel employed by the 11 parties hereto, nor financially or otherwise interested 12 in the outcome of the action. 13 14 15 16 17

_________________________________ 18 KAREN GUY 19 20 21 22 23 24 25

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A

a.m 1:11 2:2 49:24 abandon44:24 abeyance47:6 ability 4:5 25:22 able4:8 15:4 22:2

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24:24 25:2 26:5 29:11 35:7,20 36:20 37:11 39:12 39:14 44:4 allege 7:2 8:6,7 12:9 13:12 15:23 16:3 16:21 21:3 22:3 33:24,24 alleged 12:18 13:13 18:16 19:4,23,23 21:15,16 26:10,13 26:20 28:18 30:18 31:2 32:24 33:18 34:16 38:24,25 41:10 42:22 alleging 14:24 22:24

40:13 allocating 5:24 allow 6:8,8,9 33:13

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26:6 and-a-half32:10 Andrea 2:12

answer 6:23 18:12

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49:8 briefing 46:4 48:1 48:12 49:6 bring 21:12 43:17 bringing 34:10 broach 14:6 broken 37:10 brought20:1 34:10 bunch 35:3 buried 36:5

C C 2:1 20:1 21:22,23

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cases 3:8 4:6,8 13:16 13:18,19 14:1 19:18 24:13

cause 2:18 5:11 6:22

43:22 44:18 central 20:19 27:12 CER 1:25 certain 28:10 33:20 certainly 4:4 17:7

26:14 31:20 34:6 35:10 42:18 CERTIFICATE

50:2 certify 50:4

### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 For The Record, Inc. [52]

CFR5:13 22:25

27:16 CFRs 17:16 23:21 chance 32:16 47:17

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45:10,11 consisting 12:23 constitutes 10:16 constituting 39:15 contain 38:15 contained 10:20

38:14 containing 8:2 12:24 29:17,21 containment 29:22 continue 10:11
copy 17:15 46:13,18 cork 37:19 corks 37:20 42:13

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course 14:8 court 13:18 14:2 16:9 covered 7:19 Cox 1:19 2:10 4:10

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34:8 38:4,4 40:1 44:9 47:18 dealt43:14 47:2 December4:21 decide 22:3,5 39:21

45:25 46:8 47:9,11 49:18,19 decided 17:18 decision 5:11 21:9

33:12,22 46:9 declared 14:9,17 15:20,21,22,22,23 16:18 28:24 defend 25:23 31:1

33:19 defense 13:9 31:20

34:7 defined 11:24 definite 20:15 21:7 definition 11:23 delivered 26:4 denying45:17 DEPARTMENT 1:2 depend 18:4 depth 35:18 described 15:1 describing 8:18 designed 33:1 desire 10:9 despite 46:24 destroyed 25:9,10

31:9 32:4 destruction 31:9 detail 34:25 dictating 48:25 didn’t 6:22 16:20

26:21 27:23 31:6 31:17 32:2,21 40:16 42:14 44:15 died 32:9 difference 29:11 differences 36:23 different 8:9 16:8 19:16 27:3 28:6 34:21 36:21 41:19 dig 19:15 digital 50:5 direct48:12 disagree 41:6 disagrees 16:20 discovery 28:7 discuss 43:9 49:12 discussing45:13 discussions 17:5 dismiss 4:18 19:25

20:23 21:21 34:1 45:18 47:6,7 dismissal 34:22 dismissed 17:24

47:20,22 48:9 dismissing 21:14 dispose46:25 dispute 34:12 38:22 distance 5:8 docket 2:6 46:16

### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 For The Record, Inc. [53]

document 19:1 doesn’t 22:21 23:10

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2:23,24 3:7,10,14 3:19,22 4:7,15 6:8 10:3,6 11:21,23 12:8,12,16,18 13:2 13:15,17,19 14:14 14:19,21 15:6,7 20:11 22:1,8 25:12 26:1,4 27:5,7,8,19 28:5,12,23 29:1,3 29:12,14 30:4,9 31:12,13 32:18,21 33:13,15 36:25 37:3,23,25 40:6,11 40:22,25 41:6,15 41:17,25 43:20 44:3,12 45:5 46:10 46:13,19 47:13 48:6,14,16,17 49:11,23 employed 50:7,10 employee 50:10 enacted 8:23 English 19:17 entire 21:14 30:10 entirely 41:7 equipment 16:7

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9:24 10:12 24:22 37:9 41:3 43:21 example 24:5,15 exceptions 10:24

excuse48:2 exemptions 39:2 exercising 12:2 exist47:22 existed 40:21 existent42:8 exists 43:9 47:19 expect 39:25 explain 6:19 10:11 18:15 42:3 explained 2:13,14 explanation 23:1 extension 49:2,3 extra 17:19

F FAA 1:15 5:7 6:24

7:1,15 11:2 12:9 12:19 14:12 15:22 16:1,20 17:20 19:6 23:13,17,18 24:3,6 24:10,22 25:4,4 31:5,8 32:12,15,24 35:9,13 39:21 44:21,24 48:21 FAA-2015- 2:6 FAA-2015-1321 1:5 FAA’s 24:5,15 fact 9:10,22 13:2 17:24 19:9 21:5 25:21 28:14,14 29:5 30:2 31:14 32:3 42:20 43:4 44:14 48:8 factor44:13 facts 11:25 12:7 17:4 19:4,6 27:10 28:1 34:16,21 42:7 42:10 factual 35:20 36:20

37:10 38:22 44:4 fail 29:20 failed 2:17 6:23 10:16 14:12 16:22 20:6 32:25 37:16 failing 9:23 failure 2:14 fair 23:23 31:17

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5:15 31:8 41:9 44:18 filing 2:16 3:13,17

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5:19 20:14 24:9,10 26:11 28:20 43:14 45:21 47:11,16 Fisher 1:5 2:6 8:1,7

9:17 14:8,14 15:18 16:3,19 20:6 32:25 37:16 five 7:13 19:16 25:1

25:8 32:10,15 47:8 48:3,10 flat44:5 flexibility 48:24 focus 5:19 7:21

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46:3,7,23 47:3 50:9

G G 2:1 GERALD 1:16 getting 25:19 29:4

33:8 give 19:13 23:10 given49:5 giving 12:1 36:5

49:16 glass 29:19
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6:13 10:10,11 12:15 17:3,8 18:25 21:9 27:5 37:25 41:2 43:8 46:21 49:14,17,17,21,22 gobbledygook 16:15
goes 48:25 going4:5 5:17 7:6

10:8 25:6,9 28:17 29:25 30:7 31:20 34:23 36:3 37:1,12 39:3,4,20 42:15 43:5,12,23 44:25 47:5,9 49:17 good 25:6 39:4

49:16 Government 2:11

2:12 4:19 5:20 14:24 25:25 29:25 33:23 42:18 47:17 49:8 Government’s 4:4

15:12 29:11 grabbed 17:15 granted 28:15 granular 35:16 Group 29:18
guess 18:9 42:6

43:24 Guy 1:25 50:4,18

### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 For The Record, Inc. [54]

H habit23:18 half 11:3,5 42:21 hang 14:21 happen 16:17 happened 24:20

25:5,9 26:7 happening 25:2,16

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9:21 10:1,20,21 11:12 12:11,13,24 13:4,5,6 14:2,8,9 14:15,17 15:17 24:21 25:3 29:17 40:25 41:2 HAZMAT 7:8 12:6 he’s 12:18 22:2 26:6

26:18 33:9 41:13 43:4 hear 2:22 4:12,22,24

7:18 31:20 45:5 heard 2:25 31:14 hearing4:1,13 14:20 39:1 40:2 49:24 HEARINGS 1:1 heart 6:19,21 heavens 25:6 heck 35:2,7 held 37:18 hello 4:15,16 help 17:7 21:17 helpful 19:2 hereto 50:11 historical 24:17 history 6:16 HMRs 27:20 hold 17:17 29:3 37:24,24 41:17 47:5 holding 18:10 Honor40:12 45:6

46:10,10,19 48:14 48:17 49:11,23 Honorable 1:12 hope 5:7 32:15 Hopefully 4:6 House 9:13,14,14 hydroxide41:1

I I’d 4:11,22,23 5:22 18:19 I’ll 6:13 17:7 33:14

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33:18 34:13,17 identifiable 20:8

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28:15 37:21 38:5 42:5 information 44:2 initial 28:22 29:6,9

30:6 34:2,11,13 38:14,15 44:16 initially 24:3 27:4

42:22 inner 29:15,20 inside 11:15 insufficiency 4:18

4:23 5:1,22 6:14 7:22 13:10 43:3 insufficiently 5:2

6:20 insure 37:17 intended 16:11 intensely 45:25 intent 3:24 6:8 intention 47:5 interested 50:11 intermingled 18:7 18:16 intimating 8:12 involved 29:15 32:8

32:9 37:20 40:4 41:1 involving 29:15 isn’t 2:13 16:5 18:8 issue 3:1 4:11,23,23

5:1,17 7:22 9:1 13:8,9 14:2 16:24 16:25 17:1,9 21:1 21:9 23:19 27:11 27:15 30:17 31:11 42:17,17 43:3,24 46:22 47:9,16,19 47:25 49:6,7 issued 27:23 issues 4:24 5:22 13:1 26:17 43:6,7,8,13 45:13,21,24 46:1,3 46:7,23 47:1 48:8 49:16,19 issuing45:22 it’s 4:1 8:22 9:18 10:1 11:24 12:19 13:6 14:5,16 16:18 16:18 17:11 34:12 36:4 39:20 40:10 41:3 42:16,16,17 44:8 47:5 48:21

J Jack 9:11 Jackie 2:21 Jerry 1:19 2:10 joining 2:20 Judge 1:13 2:3,8 3:5

3:8,12,16,20,24 4:16 5:3,5,16,23 5:25 6:6,7,18 7:21 8:12 9:18,19 10:7 11:21 12:8,15,21 13:7,16,25 14:5,21 15:8 16:23 17:22 18:6,14 19:3,14,20 20:12,13,19 21:8 22:4,7,15,18,23 24:1,8,10 25:15,25 26:1,8,21 27:6,13 28:4,9,19,25 29:3 29:13,25 30:6,13 30:15,22,23 31:4 31:13 32:6,12 33:14,15 34:3,6,23 35:5,15 36:6,10,15 36:18,25 37:4,5,7 37:19,24 38:6,21 38:23 39:20 40:5 40:19,23 41:5,17 42:14 43:18 44:12 45:7,15,16,19 46:12,15,20 47:15 48:6,15,18,23,24 49:5,12,14 July 36:13,17 42:12 June4:16

K Karen 1:25 50:4,18 keep 6:11 31:12,15

34:23 keeping 6:12 31:18 key 22:12,14 kind 16:10 28:13 kinds 35:1 40:15 knew 9:7 10:20 11:18 14:8 16:4 know 2:16 3:12 4:5

9:5,20,20,22 10:13 10:14 11:8 12:6,13 16:10,11 17:9,21 20:9 21:6,7,25 23:8,8,16 24:24 25:1,17 26:17 29:21 32:4,10,24 33:11 34:4,5 35:2 37:11 39:6,14,17 39:18 40:13 44:4 46:5 49:18 knowing7:3 8:21 11:11 14:16 15:3 23:6 knowingly 7:4,8,11

8:1,7,14,16,17,25 11:23 12:22 13:12 13:13,23 14:25 15:4,16,19 16:21 knowingness 15:1 knowledge 10:13 11:25 12:3,10 known 9:8 11:17,18 11:18 16:5

L lab 16:6 laid 34:24 language 22:13 23:3

26:22 27:1,3,7,9 27:14,16,19,23 28:20 30:19 36:1 38:15,16 40:6

### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 For The Record, Inc. [55]

41:18 largest 16:6 law 1:13 2:8 9:15 13:14 19:7 22:6 lawyer4:4 leads 14:18 leak 33:6,7 39:7 left 6:4 18:11 21:2,6

33:11 38:3 let’s 2:22 9:19 17:1

24:14 25:15,16 49:14,21 letter 25:14 35:12 liability 9:10 liable 9:8 limit 11:4,5,5 17:20 18:10 35:8,9 39:10 limitations 25:21

28:10 31:19 32:14 47:8 48:10 limited 10:23,25 13:3,4,5,8 14:11 16:17 39:2,10,11 line 5:9 28:6 liquid 29:21 liquids 29:17 listen 6:13 17:7 listening 30:15 liter 11:3,5,6,6 14:12 39:8,10 little 8:24 17:23 LLC 1:5 2:6 long 36:4 48:5 longer 31:1 look 18:19 19:14,16

22:25 35:16,19 36:3 37:2 43:12,13 45:24 46:7,23 47:25 49:2,7,17 looked 25:5 looking 19:3 20:4,5

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9:16 19:7 26:12,14 45:4

mean 9:1 10:8 22:3

22:17,21 23:7 25:6 27:19 28:5,10 34:4 35:2 37:10 47:20

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31:2 38:19 42:2 outcome 50:12 outside 33:8

P P 2:1 package 7:8 8:2 10:16,20 11:16 20:6 28:24 29:17 33:1 packaged 10:15

### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 For The Record, Inc. [56]

15:24,25 16:2,19 18:21 31:10 packages 8:3 packaging 9:6,7,24 11:13,19 18:22 20:18 26:12 27:12 29:15,20 30:11 32:19 33:4 packing 29:18
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26:13 46:22 regardless 38:25 Regional 5:10 7:1 11:2

### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 For The Record, Inc. [57]

regulated 41:3 regulation 7:11

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26:19 27:11 40:12 sufficiently 5:20

28:13 suggestion 5:4 supervision 50:6 supplemental 19:1

### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

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### Pretrial Conference Fisher Scientific Company, LLC 10/4/2016

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 For The Record, Inc. [59]

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