In The Matter Of: 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 2011 S0700457 

Respondent 

COMPLAINANT'S REPLY BRIEF 

,'':::_ 

Pursuant to FAA Civil Penalty Rules of Practice1 13.219( d), Complainant files this reply 

showing why Respondent's interlocutory appeal must be dismissed. Respondent asserts that the 

interlocutory appeal is permissible because the Administrative Law Judge (ALJ) failed to dismiss 

the proceedings under Rule 13.215 (related to withdrawal of a complaint or request for hearing). 

The interlocutory appeal is premature because the ALJ did not rule on Respondent's motion to 

find the Complaint constructively withdrawn. The interlocutory appeal is also baseless because 

Complainant never withdrew the Compliant and participated throughout the proceedings before 

the ALJ. Therefore, the interlocutory appeal must be dismissed. 

Statement of the Case 

This case arises from a Complaint filed on June 4, 2015, alleging violations of the 

Hazardous Materials Regulations (49 C.F.R. Parts 171 to 180). See Complaint. In lieu of an 

Answer, Respondent filed a motion to dismiss the Complaint. See Respondent's Motion to 

Dismiss Complaint filed August 7, 2015. On April 6, 2016, the ALJ issued an Order directing 

the parties to (a) meet and confer on a litigation schedule, and (b) file a joint litigation and 

hearing report. See Exhibit A. The parties conferred on April 20, 2016, and decided that 

Respondent would draft the joint response. See Exhibit B. Respondent drafted the joint 

1 14 C.F.R. Part 13, Subpart G. 
response, and Complainant did not object to the draft. See id. Respondent's counsel filed a 

unilateral response with the ALJ on April 30, 2016, arguing that Complainant's counsel 

prevented Respondent from filing a joint report. See Exhibit C. Respondent's unilateral 

response failed to provide the information required by the April 6, 2016 Order. See id.; Exhibit 

D. 

On May 17, 2016, the ALJ issued an "Order to Show Cause and Provide Requested 

Infonnation." See Exhibit D. The Show Cause Order found that neither party provided the 

information requested in the April6, 2016 Order. Id. at 2. The Show Cause Order also required 

Complainant to file a statement explaining why it failed to comply with the April 6, 2016 Order 

to meet and confer . .!Q,_ On May 31, 2016, Complainant submitted its response to the Show 

Cause Order. See Exhibit E? Complainant explained that the parties did in fact confer on April 

20, 2016, agreeing Respondent would draft the joint response. Id. Additionally, Complainant 

noted that Respondent could have filed a joint response based on the parties' discussions when 

they conferred. Id. Complainant's May 31st response was signed "Gerald A. Ellis, Managing 

Attorney for Andrea Michelle Harper." Id. Attorney Harper's authority to represent 

Complainant is delegated through managing attorney Gerald A. Ellis. See Exhibit F; Exhibit G. 

On August 29, 2016, the ALJ ordered the parties to appear telephonically on October 4, 

2016 for a preheating conference and oral arguments on Respondent's Motion to Dismiss. 

Exhibit H. On September 23, 2016, Respondent filed a motion arguing, inter alia, that the ALJ 

should (a) strike Complainant's May 31st response due to managing attorney Gerald A. Ellis 

signing the document for attorney Harper, and (b) find Complainant constructively withdrew the 

2 Complainant's Response includes two exhibits, "Government Exhibit l" and "Government Exhibit 2." 

2 
Complaint based on Complainant's failure to file a response to the Show Cause Order. See 

Exhibit I at 1-2 (making the argument by reference to the ALI's May 17th Show Cause Order). 

Complainant participated in the October 4th preheating conference via managing attorney 

Gerald A. Ellis. The ALJ reserved ruling on Respondent's previously filed motions. See Exhibit 

J. Also on October 4, 2016, Respondent filed its Notice of Interlocutory Appeal of Right, 

asserting the interlocutory appeal is permitted because the ALJ failed to dismiss the proceedings 

in accordance with 14 C.P.R. § 13.215. See Exhibit K. Other than an October 6, 2016 Order 

Staying Proceedings that was issued in response to Respondent's Notice oflnterlocutory Appeal, 

the ALJ did not issue an order following the October 4th prehearing conference. See Exhibit J; 

see generally, the Docket (showing no ALJ initial decision or ruling since the October 4th 

preheating conference). Complainant did not withdraw the Complaint or abandoned the case. 

See generally, the Docket (showing no withdrawal of Complaint and Complainant's continued 

participation in this matter). 

Argument 

This interlocutory appeal must be dismissed as both premature and baseless. The ALJ 

reserved ruling on Respondent's September 23rd motion to, inter alia, find Complainant 

constructively withdrew the Complaint. Therefore, Respondent's interlocutory appeal is 

premature because there is not an ALJ decision for the Decisionmaker to review. Even if the 

ALJ had ruled that Complainant did not constructively withdraw the Complaint, this ruling 

would not be subject to an interlocutory appeal of right and would be the correct ruling on the 

facts of this case. 

3 
I. The interlocutory Appeal is Premature 

Typically, a party may not appeal a ruling or decision of an ALJ until the initial decision 

is entered on the record. 14 C.F.R. § 13.219(a); In the Matter of Kyle Ponsford, FAA Order No. 

2010-3, 2010WL7940352, at 2 (April 28, 2010). When the Rules of Practice permit an 

interlocutory appeal, a party must wait to file the interlocutory appeal until after the ALJ issues 

the decision forming the basis of the appeal. See 14 C.F.R. § 13.219(d) (emphasis added). The 

Decisionmaker will dismiss a premature appeal. In the Matter of Kyle Ponsford, FAA Order No. 

2010-3 at 3. 

Assuming, arguendo, that the Rules of Practice permit an interlocutory appeal of right 

from an ALJ decision finding no constructive withdrawal of a complaint or request for hearing, 

Respondent's interlocutory appeal of right is premature. Rule 13.219(d) expressly provides that 

an interlocutory appeal may only occur after an ALJ issues a decision. See 14 C.F.R. § 

13.219(d). Here, the ALJ did not issue a decision on whether the Complaint was constructively 

withdrawn. See Exhibit J. During the October 4th prehearing conference, the ALJ reserved 

ruling on Respondent's pending motions. See id. This includes Respondent's September 23rd 

motion to find that Complainant constructively withdrew the Complaint. See id.; Exhibit I. 

Accordingly, there is not an ALJ decision from which an interlocutory appeal could potentially 

be taken. See Exhibit J. The interlocutory appeal is premature and must be dismissed. See 14 

C.F.R. § 13.219(d); In the Matter of Kyle Ponsford, FAA Order No. 2010-3 at 3. 

II. The Interlocutory Appeal is not Permissible Under Rule 13.219(c) Because Complainant 

did not Withdraw Complaint 

The Rules of Practice limit an interlocutory appeal of right to three specific situations: (1) 

an ALJ ruling or order barring a person from the proceedings; (2) failure of the ALJ to dismiss 

the proceedings in accordance with 14 C.F.R. § 13.215 (providing for dismissal of proceedings if 

4 
the complaint or request for hearing is withdrawn); and (3) an ALJ ruling or order in violation of 

14 C.F.R. § 13.205(b) (providing limitations on the ALJ's power). 14 C.F.R. § 13.219(c). The 

only issue considered by the Decisionmaker in an interlocutory appeal of right is whether the 

ALJ entered a ruling in violation of Rule 13.219(c)(1)-(3).3 See In the Matter of Alaska Airlines, 

Inc., FAA Order No. 91-54, 1991WL733783, at 1 (November 6, 1991). The Decisionmakermay 

reject frivolous or dilatory interlocutory appeals and bar further interlocutory appeals. 14 C.F.R. 

§ 13.219(e). 

Respondent argues that a constructive withdrawal under Rule 13.215 is appropriate when 

a party fails to (a) comply with an ALJ order to meet and confer, (b) respond to an ALJ show 

cause order, and, if applicable, (c) attend a prehearing conference. See Brief in Support of 

Respondent's Interlocutory Appeal of Right at 3-4, 6-7. While this position may be legally 

accurate, it ignores the fact that Complainant (a) conferred with Respondent related to the ALJ's 

April 6th order to meet and confer, (b) timely respondent to the ALJ's Show Cause Order, and 

(c) participated in the October 4th pre hearing conference. 

A. Complainant Met and Conferred with Respondent 

The ALJ's April 6th Order required the parties to (a) meet and confer, and (b) provide a 

joint litigation schedule. See Exhibit A. While both parties failed to submit a litigation schedule 

as required, Exhibit D at 2, it is undisputed that the parties met and conferred telephonically on 

April 20th, Exhibit B; Exhibit E. See Exhibit E. Furthermore, while Respondent's assertions 

regarding the substance of the April 20th meeting are beyond the scope of an interlocutory 

appeal of right, Complainant notes that the parties' April 20th meeting resulted in an agreed upon 

3 This brief only addresses the facts relevant to the alleged basis for this interlocutory appeal of right. The fact that 

this brief may not address a particular fact asserted by Respondent should not be construed as indicating 

Complainant's agreement with the asserted fact, nor that it is waiving its right to contest the asserted fact in an 

appeal following an initial decision issued by the ALJ at the conclusion of this matter. 

5 
a response to the April 6th Order that Respondent drafted. See In the Matter of Alaska Airlines, 

Inc., FAA Order No. 91-54, at 1; Exhibit E. Accordingly, Respondent's argument that 

Complainant failed to meet and confer is erroneous. 

B. Complainant's May 31st Response to ALI's Show Cause Order 

Complainant timely filed its May 31st response to the ALI's Show Cause Order. See 

Exhibit E. The response was signed "Gerald A. Ellis, Managing Attorney for Andrea Michelle 

Harper." Id. at 2. Respondent argues this is an impermissible signature under Rule 13.207(a),4 

but its argument must be rejected. Rule 13.207(a) provides that "[t]he attorney of record, the 

party, or the party's representative shall sign each document" that is filed. 14 C.F.R. § 

13.207(a). 

Here, Complainant's May 31st response to the ALI's Show Cause Order complied with 

Rule 13.207(a). Federal courts recognize that an attorney of record may authorize another 

attorney to sign a pleading on behalf of the attorney of record and the signature be in compliance 

with analogous Federal Rule of Civil Procedure 11(a). See e.g., Exhibit L (providing 

instructions for how to authorize another attorney to sign for the attorney of record in the 

Northern District of Florida). Attorney Harper's managing attorney was authorized to sign on 

her behalf. See Exhibit F; Exhibit G. The signature "Gerald A. Ellis, Managing Attorney for 

Andrea Michelle Harper" is the same as if attorney Harper had personally signed the document 

±or purposes of Rule 13.207(a). See Exhibit L. 

Even if an attorney of record could not authorize a supervisor to sign on that attorney's 

behalf, Complainant's May 31st response to the ALI's Show Cause Order complied with Rule 

4 Respondent also cites to Federal Rule of Civil Procedure ll(a). While analogous, there are slight differences 

between Rule of Practice 13.207(a) and Fed.R.Civ.P. ll(a). As this proceeding is governed by the Rules of Practice, 

not the Federal Rules of Civil Procedure, Complainant will focus on Rule 13.207(a). See In the Matter of Tokyo Air 

Cargo USA, FAA Order No. 2004-7, 2004WL2416222, at 2 (September 22, 2004). 

6 
13.207(a). In addition to an attorney of record, a "party" or "party's representative" is permitted 

to sign a document. See 14 C.P.R. § 13.207(a). The Rules of Practice define "party" to include 

"the Federal Aviation Administration (FAA)." 14 C.P.R.§ 13.202. Gerald A. Ellis, a managing 

attorney in the FAA Office of Chief Counsel, is a representative for the FAA in legal matters, 

and attorney Harper's authority to represent Complainant flows through managing attorney 

Ellis's delegated authority. See Exhibit F; Exhibit G. Therefore, the "party" or "party's 

representative" signed Complainant's May 31st response to the ALI's Show Cause Order in 

compliance with Rule 13.207(a). Accordingly, Complainant timely responded to the ALI's 

Show Cause Order and did not violate Rule 13.207(a). 

C. Complainant Participated in the October 4, 2016 Preheating Conference 

Complainant participated in the October 4, 2016 preheating conference. Respondent 

attempts to argue that Complainant did not participate in the October 4th preheating conference 

because managing attorney Gerald A. Ellis participated on behalf of Complainant. See Brief in 

Support of Respondent's Interlocutory Appeal of Right at 4, 7. Regardless of who represented 

Complainant during the October 4th preheating conference, Complainant was present and 

participated. See Exhibit J (stating that the parties were present for the October 4th preheating 

conference); see also See Exhibit F; Exhibit G. Respondent is forced to admit this in its 

interlocutory appeal brief. See Brief in Support of Respondent's Interlocutory Appeal of Right 

at 4. Therefore, Respondent's assertion that Complainant failed to participate in the October 4th 

prehearing conference is baseless. 

Respondent also makes reference to several comments allegedly made by managing 

attorney Gerald A. Ellis during the October 4th preheating conference. See Brief in Support of 

Respondent's Interlocutory Appeal of Right at 4, 7. Complainant disputes the accuracy of the 

7 
alleged comments, but this argument is beyond the scope of an interlocutory appeal of right. See 

In the Matter of Alaska Airlines, Inc., FAA Order No. 91-54, at 1. Furthermore, while 

Respondent may take issue with its biased perception regarding the the quality of Complainant's 

participation, this does not change the fact that Complainant participated. See Exhibit J. 

Accordingly, Complainant participated in the October 4th prehearing conference. 

D. Cases Cited by Respondent are Distinguished Because the Cases Involve a Party 

Abandoning Its Case 

Complainant agrees with Respondent that a complaint or request for hearing can be 

constructively withdrawn when a party abandons its case. However, Complainant did not 

abandon its case in this matter. The cases cited by Respondent in its interlocutory appeal brief 

are factually distinct because they involve a party that failed to either (a) file an answer;

5 (b) 

respond to a show cause order;6 (c) file an answer and respond to a show cause order; 7 

or (d) 

comply with a meet and confer order and respond to a show cause order8 See Respondent's 

Interlocutory Appeal Brief at 5-6. Here, Complainant met and conferred with Respondent, 

timely responded to the ALI's Show Cause Order, and participated in the October 4th prehearing 

conference. See Exhibit B; Exhibit E; Exhibit J; see also Section II.A, II.B, and II.C above. If 

applicable at all, the cases cited by Respondent actually compel a finding that Complainant never 

constructively withdrew the Complaint. Accordingly, Respondent's argument that Complainant 

constructively withdrew the complaint is baseless. 

5 FAA v. Butte Aviation Inc., Docket No. CP03NM0014, 2004WL350392 (February 12, 2004). 6 In the Matter of Edward V. Parks, Docket No. CP98AL0005, 1999WL33739451 (February 17, 1999). 7 FAA v. Bonanza Valley Aviation, Inc., FAA Docket No. CP94CE0036, 1994WL16054306 (May 4, 1994). 

8 In the Matter of Christopher McCann, Docket No. F AA-2014-0405, 2016WL3662616 (June 29, 2016); In the 

Matter ofiXL Premium Lubricants. Inc., Docket No. F AA-2015-0634, 2016WL3662615 (June 28, 2016). 

8 
III. Conclusion 

At a minimum, this interlocutory appeal must be dismissed as premature because the ALJ 

merely reserved judgment on Respondent's motions. Even if Respondent's interlocutory appeal 

was not premature, Complainant did not constructively withdraw the Complaint and continues to 

participate in this matter. Therefore, this interlocutory appeal must be dismissed because it is not 

permitted under Rule 13.219(c). Respondent should also be barred from filing further 

interlocutory appeals under Rule 13.219(e). 

Respectfully submitted this 21st day of October, 2016. 

Naomi Tsuda 

Assistant Chief Counsel for Enforcement 

By: 

Ryan M. Landers 

Enforcement Division, Southern Team 

1701 Columbia Ave. 

College Park, GA 30337 

Tel: 404-305-5200 

Fax: 404-305-5223 

9 
CERTIFICATE OF SERVICE 

I certify that on October 21,2016, the foregoing Complainant's Reply Brief was filed 

with the Decisionmaker and the Hearing Docket Clerk via Federal Express as follows: 

Original and One Copy: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building, Suite 2Wl 000 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

In addition, I certify that on October 21, 2016 the foregoing Complainant's Reply Brief 

was served via Federal Express as follows: 

One Copy: 

The Honorable Douglas M. Rawald 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-31 0) 

East Building Ground Floor 

Washington, DC 20590 

JerryW. Cox 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

I ~~-~~tr-~~~~ 

!OCT 21 

Dated 

10 
SERVED: April6, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

In The Matter Of: 

Fisher Scientific Company, LLC 

Respondent 

WASHINGTON, DC 1 

) 

) 

) 

) 

) 

Docket No. FAA-2015-1321 

Case No. 2011S0700457 

ORDER DIRECTING THE PARTIES TO MEET AND CONFER REGARDING 

LITIGATION AND SCHEDULING ISSUES 

The above captioned case was reassigned to the undersigned judge on March 24, 2016. By 

order of the Chief Administrative Law Judge, any previously established date for a pre hearing 

conference or trial was suspended. Those dates are now vacated and there is a need to establish a 

new litigation schedule for this case. To assist the undersigned judge, the parties should meet 

and confer to propose a mutually agreeable schedule. 

An administrative law judge may hold conferences to, among other things, "settle [or] 

simplify the issues by consent of the parties." 1 Pursuant to 14 C.F.R § 13.205(a)(l) and (7), it is 

hereby ORDERED: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

2. The parties shall draft a joint report providing: 

a. a suggested venue, 

b. a proposed schedule for the completion of discovery (or an indication that 

discovery is complete), 

c. a list of any pending motions. that have been previously filed but have yet to be 

ruled upon, 

d. a proposed date for a telephonic preheating conference with the undersigned 

judge, 

1 14 C.F.R. § 13.205. 

Government 

Exhibit 

A 
e. a proposed due date for the filing of any prehearing motions (including a 

proposed date for a telephonic hearing on any filed motions, if so desired), and 

f. proposed hearing dates. The parties should provide at least three alternative dates 

on which the hearing may be held that are acceptable to all parties. 

3. In addition to filing the report with the Federal Aviation Administration Hearing Docket 

Clerk in accordance with 14 C.F.R. § 13.210, the parties shall submit the report to the 

undersigned judge at the Office of Hearings by fax, express carrier, or personal delivery 

no later than 30 calendar days after the date of service of this order. 

~ DOUGLAS M. RA WALD 

Administrative Law Judge 

Attachment: Service List 

2 
Docket No. F AA-20 15-1321 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0002 

Jerry W. Cox, Respondent's Counsel 

Counsel for Thermo Fisher Scientific, Inc. 

and Fisher Scientific Co., LLC 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

TEL: 703-757-5866 

ONE COPY 

Email: jcox@potomacstrategyassociates.com 

William Vines, Complainant's Counsel 

Office of the Regional Counsel, AS0-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

The Honorable Douglas M. Rawald, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

2 Service was by U.S. Mail. For service in person or by expedited courier, use the following 

address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright 

Building-Suite 2Wl 000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. 
Harper, Michelle (FAA) 

From: 

Sent: 

To: 

Jerry Cox <jcox@potomacstrategyassociates.com > 

Wednesday, April 20, 2016 12 00 PM 

Harper, Michelle (FAA) 

Subject: Re TFSI- FAA- Chino- Case No FAA-2015-1321 

TF Slch in oJ o i ntRep o 11042 3. 016. pdf Attachments: 

Please find attached a proposed !ina! version of the Joint Report in response to Judge Rcwo.rd's Order dated 

April 6. Unless you sec a need for changes. would you please sign on page l and return tu me for 

countersignature~ I' II finalize the certificate of service at that time. 

I'm sure it's in both parties' interests to get back to the judge promptly. 

I also appreciate your call this moming and look forward to whatever substantive discussions might help to 

resolve this case. 

On Apr 19. 2016. at 5:19PM. Jerry W. Cox <jcoxia.potomacstrateg\associaks.u>m> wrote: 

Perfect I'll look forward to "meeting" you then. Will stand by for your call 

Jerry W. Cox (703) 757-5866 

On Apr i 9, 2016, at 4:55 PM, <Michelle.Harper@faa.gov> 

<Michelle. Harper@faa.gov> wrote: 

Hi JerryHow's 11 am. tomorrow morning! I'm telework1ng today and don't have access to the 

file 

I will be in the office tomorrow. 

From: Jerry W. Cox [mailto:jcox@ootomacstrategyassociates.com] 

Sent: Tuesday, April19, 2016 4:54PM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I just now got back to my office. I'd be glad to speak w/vou now ur at ilrl\ time 

tomonuw that would !It your schedule. 

Jerry W Cox (703) 757-5866 

Government 

Exhibit 

8 
On Apr 19, 2016, at 11:33 AM, <Michelle.Harper\alfaa.gov> 

<Michelle.Hamer(rofaa.gov> wrote: 

Yes, that's fine. 

From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Tuesday, April 19, 2016 11:31 AM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I'll be out of the office w1til aroWld 4 this afternoon. Would it be 

convenient to speak then? 

On Apr 19, 2016, at 9:55AM, 

<Michelle. Harper(iUfaa. gov> 

<Michelle.Harper@faa.gov> wrote: 

Hi JerryI will give you a call this afternoon to discuss the judge's 

Order. 

Regards, 

Michelle Harper 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division- Southern Team 

(404) 305-5200 Tel. 

(404) 305-5223 Fax 

From: Vines, William (FAA) 

Sent: Tuesday, April 19, 2016 9:23AM 

To: Jerry Cox 

Cc: Harper, Michelle (FAA) 

Subject: RE: TFSI - FAA - Chino -

Hi Jerry, 

Michelle Harper is now handling this case. l 

have cc' d her on this email. Please accept 

my apology for the delayed response. 

Regards, 

Will Vines 

2 
General Attorney 

404-305-5200 

This message is intended solely for specific 

recipients. If you are not an intended 

recipient of this communication, please 

delete the original message and notify the 

sender immediately. This message may be 

confidentiaL an attorney-client 

communication, attorney-work product, part 

of the agency's deliberative process, and/or 

contain privacy-sensitive infonnation. This 

email must not be forwarded or otherwise 

shared without express pennission of the 

sender. 

From: Jerry Cox 

[ ma ilto: jcox@ ootomacstrategyassociates. com] 

Sent: Monday, April 18, 2016 7:04PM 

To: Vines, William (FAA) 

Subject: TFSI - FAA - Chino -

I phoned you April 15 and left a voicernail 

concerning Judge Rawald's April 6 order, but I 

haven't heard back. Would you please call me') 

Jerry W. Cox I Potomac Strategy Associates 12050 Jamieson 

Ave., Suite 1212] Alexandria, VA 22314] tel703-757-5866 

I wvvw ootomacstrateqvassociates. com 

3 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, 

v. 

FISHER SCIENTIFIC COMPANY, LLC, 

Respondent. 

} 

} 

} 

) 

} 

l 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

REPORT OF FISHER SCIENTIFIC IN RESPONSE TO 

ORDER SERVED APRIL 6, 2016, 

AND 

MOTION TO SANCTION FAA'S NONCOMPLIANCE 

By Order entered April 6, 2016, Judge Rawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation Administration (hereinafter referred to as "FAA") and 

Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to file a Joint Report 

addressing certain pre-hearing matters that were listed in the Order, including "a list of any 

pending motions that have been previously filed but have yet to be ruled upon." 

Fisher regrets to report that FAA counsel essentially went "AWOL" and thwarted Fisher's 

diligent efforts to respond to the Order with a Joint Report. Fisher's undersigned counsel 

telephoned the FAA attorney identified on the service list (Mr. Vines) on April 15,2016. Mr 

Vines did not answer his telephone, so Fisher's counsel left a voicemail stating that the call was 

in reference to the April 6 Order. l'v1r. Vines never returned the call. On April 18, the 

undersigned counsel emailed Mr. Vines, requesting a response to the April 15 voicemail. On 

April ! 9, Mr. Vines responded that a different FAA attorney was handling the case, even though 

FAA never updated the service list. 

On April 20, Ms. Michelle Harper phoned to say she was the attorney responsible for FAA's 

compliance with the Order She asked Fisher's counsel to prepare a draft Joint Report, which the 

undersigned emailed to her a few minutes later. Fisher requested that she either concur with the 

draft and sign it or suggest any edits she thought appropriate. Ms. Harper did neither. 

Government 

Exhibit 

c 
Report of Fisher Scientific 

A week later, on April 27, the undersigned phoned Ms. Harper but, once again, she did not 

answer her telephone. Fisher's counsel left a voicemail reminding her that Fisher was 

determined to comply with the Order but- without any response from her- it would be 

impossible to file the required Joint Report. Ms. Harper never responded to the voicemail. On 

April 29 -the deadline for finalizing and mailing the Joint Report- the undersigned telephoned 

Ms. Harper again, but she did not answer her telephone. Fisher's counsel indicated in a voice 

mail that ifF AA continued to ignore the proposed draft of the Joint Report, Fisher would have 

no choice but to withdraw it and file its own unilateral response to the Order Ms. Harper did not 

return the call or otherwise respond. 

FAA's apparent disregard of the April 6 Order is just the latest chapter in a five-year history of 

the Office of Southern Regional Counsel dragging its feet and utterly ignoring applicable laws 

and Rules of Practice. 

This case arises from an alleged incident that occurred five years ago, on July 21, 2011. FAA 

waited until days before the statute of limitations expired and filed a Notice of Proposed Civil 

Penalty in July, 2013. After Fisher pointed out that the Notice was based on regulatory 

requirements that were not in effect in 2011, FAA filed an Amended Notice on July 24, 2014, 

more than three years after the alleged incident and more than one year after the statute of 

limitations expired. 

FAA waited almost another year, until June, 2015, to file its Complaint. On June 23, 2015, 

Respondent Fisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being 

barred by the statute oflimitations. The FAA's own Rules of Practice allowed FAA 10 days to 

oppose Fisher's Motion to Dismiss, but the agency did not file its Memorandum in Opposition 

until August 17, 2015, almost two months after it was due. Fisher's Motion to Dismiss has been 

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilatory conduct and get this ancient case 

off the docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal 

should not be ordered on one or more of the following grounds: 

1. FAA's failure to comply with the April6, 2016, Order 

2. FAA's default in failing to file a timely opposition to Respondent's June 23, 2015, 

Motion to Dismiss. (No extension was permitted under FAA's Rules of Practice for the 

reasons stated in Respondent's Opposition to FAA's Motion for Extension.) 

3. FAA's decision to wait more than three years after the alleged incident and more than a 

year after the statute of limitations expired to lodge crucial allegations in the Amended 

Notice. (Respondent's Memorandum in Support and its December 21, 20!5, Reply to 

FAA's Memorandum in Opposition, an additional copy ofwhich is attached, explain in 

detail why the case is barred as out-of-time.) 

2 
Report of Fisher Scientific 

4. FAA's failure to state a legally sufficient claim, as explained in Respondent's abovereferenced Memorandum in Support and its Reply to FAA's Memorandum. 

WHEREFORE, Respondent respectfully requests the Judge to command Agency respect for his 

Orders and for the substantive and procedural laws underlying the above-captioned case by 

DISMISSING with prejudice FAA's Complaint 

Respondent reiterates its request for in-person oral argument on the issues presented by its 

pending motions. 

Dated: April 30, 2016 

Respectfully submitted, 

Jerry w>cox, Esq. 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) c.c_~---- _c.: .. ec,'C .. • • - -- :..C'_'.-cc'-=--~-··--::. -,1 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

3 
Report of Fisher Scientific 

CERTIFICATE OF SERVICE 

On April 30, 2016, the undersigned sent by the indicated type of service at least one copy of the 

foregoing Joint Report to each of the persons listed below. 

0 [One Copy by U.S. Postal Mail] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave, S.E. (Ell-310) 

Washington, DC 20590 

0[0riginal +One Copy by Postal Mail] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2Wl000 

600 Independence Ave., S.W. 

Washington, DC 20591 

D [One Copy by Air Courier] 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

1701 Columbia Ave. 

College Park, GA 30337 

0 [One Copy by Air Courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

US. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

D [Original +One Copy by Air Courier J 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

0[0ne Copy by U.S. Postal Mail] 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

College Park, GA 30320 

i . 

Jerry W.:Cox, Esq. 

4 
2016-05-17 08:17 

In The Matter Of: 

DOT 1 >> 4043055223 

SERVED: May 17,2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fishct· Scientillc Company. LLC 

p 1/3 

) 

) 

) 

) 

) 

Ctlse No. 20 II 80700457 

Respondent 

ORDER TO SHOW CAUSE ANP PROVWE REQUESTED INFORMATION 

On April6, 2016, the undersigned judge issued an Order Directing the Parties to Meet and 

Confer Regarding Litigation and Scheduling Issues in the above captioned case. The order 

required, ln!er alia, the parties to submit a joint report to the undersigned judge within 30 days of 

that order. 

On April 30,2016, the Respondent !1lecl a unilateral report, stating that his attempts to meet 

and confer with the Complainant had tailed. 1 

The Complainant !ailed to submit a repot1 or request lor additional time bef\>re the deadli11C. 2 

In accotdancc with 14 C.F.R. § !3205(u)(6), an admi11istrative law judge is empowered to 

regulate the course of a hearing. As previot1sly noted by the FAA Administrator: 

[t'lhe Adminislmtor expects thill the pmties will comply with orders issued by an AL.J during the 

hearing stage ora proc:ceding. Ignoring an ALl's <)l'der!l cannot be countenanced in anlwderly 

system of adjudiCIIticm:' 

The pat1ies are theret(Jte reminded that failure to follow the undersigned administrative law 

judge's orders without good cause may result in sanctions:' Moreover, continued failure to 

1 Respondentlililed, however, to provide all the inllwmation requested in the April6, 2016 Meet and Confer Order. 

'Counsel for the COtl1plllinanll11cd a notice ofappeou·ancc on May 10.2016, but t\lilcd to i11clUde the infor111ation 

r~quired by tho undersigned jUdge's Apr·il 6, 2016 Meet ond Confer Order or ot1br a response to Resp<mdcnt's 

aoscrtions within his Aprll30, 2016 1'epor1. Notably, the counsel making her appearance was the same person 

Respondent's counsel h~d corr•espondcd with regarding this mutter as early as April 20, 20 t 6. This counsel wos 

thcre1i>re assigned to this matter well before the deadline ibr tiling a response t(ltfre April 6, 2016 Meet ll11d CNrler 

Order. 

'AnWI'/l'W1 Air/ine.t Inc, FAA Order No. 2002-15, al 9 (May 20, 2002). 

·'See !d. ("Ptlrties who disregard the ALJ's or·ders do so at their own peril because the Adminislriltor· on appeal will 

uphold My rcasonablG: snnctlons permitted by the Rules MPraclice that the ALJ impose~ against o. party lhr that 

behavi~)r."). Government 

Exhibit 

0 
2016~05-17 08:17 DOT 1 >> 4043055223 

participate in the proceedings as directed by the undersigned judge may be deemed a 

constructive withdrawal of the request for hearing or complaint by the party demonstrating su~h 

n lack of interest in participating in these proceedings.' 

Pursuant to 14 C.P.R.§ 13.205(a)(l), (6), and (7), it is hereby ORDERED: 

I. No later than June 1, 2016, the Respondent shall file a report including all of the 

information requested in the Order Directing the Parties to Meet t~nd Confer Regarding 

Litigation <md Scheduling Issues. 

p 2/3 

2. No later than ,June I, 2016, the Complainant shall Ji!e a statement explaining the cause of 

their failure to comply with the Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues, 

3. The Complainant sha\1 include in their statement the information requ~sted in the Order 

Directing the Parties t\> Meet and Confer Regarding Litigation and Scheduling Issues. 

4. If the Complainant fails to Ilk this statement by the above deadline, the undersigned 

judge may issue a subsequent order J1nding the Complainant has constructively 

withdrawn from these proceedings and, pursuant to !4 C. F.R. § 13.215, dismiss the case 

with prejudice, 

,.:P e:: -~· DOUGLAS M. RA WALD 

Administrative L<\W Judge 

Attachment: Setvioe List 

·'Sec, e.g .. Ill/, /'owe!' Supp(v, Docket No. CPO t SOOO t5 (PAA Aug. 7, 200 I) (Al..J construed Respo11dent's silence 

as a constructive withdrawal of request for a hearing), appeal dl8missed, FAA Order No. 2002-10 (Apr. 17. 20021: 

13/wtkson, Dt>ckct No. C1'97Er\0024 (FAA Scp. II, 1997) (ALJ found failure to respond to pt·cvious Ol'ders 

constituted constructive withdt·awal), aff"d, FAA Order No. 98-21 (Oct. 9, 1998), See also lnswod /Jol/oon Set·vi<:es, 

FAA Order No. 1998-23, 11t 3 (Nov. 24: 1998) (affirming ALJ's decision to flnd constt•uctivo withdrawal when u 

party !~tiled to appear at the hearing without good cause); Apollo A & HS CrmJf>any, FAA Order No. 20 11·4, at 4 

(.I an. 14,20 II) ("Apollo's failure to appear lit the heari11g lind to pui'SUe its reque~t 1\Jr hearing without good cause 

constiiiJtcd a constt•uctive withdrawal of its request tbr hearing."). 
2016;05-17 08:18 DOT 1 >> 4043055223 

Docket No. FAA-20 15-1321 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Heat'ing Docket Clerk, AGC--430 

Wilbur Wright Building-Suite 2Wl0006 

Jerry W. Cox, Respondent's Counsel 

Counsel for Thermo Fisher Sci entitle. Inc. 

and Fisher Scientific Co., LLC 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

TEL: 703-757-5866 

ONE COPY 

Email: jcox@potomacstrategyussoclates.com 

Andrea Michelle Harper, Complainanl 's Counsel 

Senior Attorney, Ofticc of the Regional CotmBcl 

Enforcement Division, Southern Team 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404·305-5200 

FAX: 404-305-5223 

The Honorable Douglas M. Raw;tld, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Eil-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366· 7536 

''Service was by U.S. Mttll. Fot· service i11 person or by expedited courier, lloe the following address: Fedeml 

i\ vim ion i\dtninistrallon, 600 Independence Avenue, S, W., Wilbur Wl'ight Buildhig··-Suite 2 WI 000. Washington, 

DC 20591: Attention: Hearing Docket Clerk, AGC-430. 

p 3/3 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

FISHER SCIENTIFIC LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMPLAINANT'S RESPONSE 

TO SHOW CAUSE ORDER 

Complainant, by and through the undersigned counsel, hereby files its Response 

to the Order to Show Cause and Provide the Requested Information served May 17,2016, 

and states the following: 

1. Respondent's counsel and the undersigned attorney exchanged several emails on 

April 19, 2016, and agreed to "meet" April 20, 2016 at 11 a.m. to discuss the case 

in accordance with the terms of the Order Directing the Parties to Meet and 

Confer. See Exhibit 1. 

2. On April 20, 2016, the undersigned and Respondent's counsel had a lengthy 

phone call discussing the issues in the case, as well as the information required by 

the Order Directing the Parties to Meet and Confer. At the end of the phone call, 

the parties agreed (emphasis added) that the information sought in the Order 

Directing the Parties to Meet and Confer could not be provided until there was a 

ruling on Respondent's Motion to Dismiss. Therefore, the parties agreed 

(emphasis added) to submit as such as their Joint Report. 

3. During this same phone call, Respondent's counsel offered to prepare the Joint 

Report for his signature, as well as the undersigned's signature. He emailed the 

report on April 20, 2016. See Exhibit 2. The Joint Report contained several errors, 

including the undersigned's name and appropriate FAA office. However, before 

the undersigned could correct those errors, Respondent's counsel filed his 

unilateral report and motion for sanctions. 

4. Complainant submits Respondent's motion for sanctions is disingenuous on its 

face. The parties did indeed meet and confer on April 20. 2016, as required. The 

parties had a thorough discussion of the underlying facts of the case and stated 

their respective positions. At the end of the discussion, both parties agreed it 

Government 

Exhibit 

E 
would be difficult to establish litigation deadlines without having a ruling on the 

pending motion to dismiss. Consequently, both parties agreed to submit that 

statement in response to the judge's order. Thus, Respondent's assertion that the 

conference did not take place is without merit. 

5. Equally unmeritorious is Respondent's assertion that the undersigned went 

"AWOL." Respondent claims several messages were left that were umeturned; 

however, the undersigned did not receive any voicemail messages. Furthermore, 

the undersigned did not receive any email messages from Respondent. 

6. Assuming, arguendo, Complainant did not return Respondent's messages, 

Complainant submits Respondent could have submitted a joint report and 

indicated the undersigned agreed with the position articulated, even without the 

undersigned's signature. Instead, Respondent filed a pleading with the Court that 

was filled with mistruths. 

7. With respect to the information requested in the Order Directing the Parties to 

Meet and Confer, Complainant submits Respondent's pending motion to dismiss 

is possible dispositive to the case. Therefore, Complainant requests that any 

litigation scheduling/deadlines and venue decisions be postponed until a ruling on 

the pending motion to dismiss. 

WHEREFORE, based on the foregoing, Complainant respectfully requests 

Respondent's Motion for Sanctions be denied. Additionally, Complainant requests any 

litigation scheduling be postponed until there is a ruling on Respondent's pending motion 

to dismiss. 

Submitted this 31" day of May, 2016. 

~?7 £/~' )ld/111.5-1', ri-1/,-/l,.y 

in 

ANDREA MICHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served a copy of the foregoing Response to Order to 

Show Cause In the Matter of Fisher Scientific LLC, Docket No. F AA-2015-1321, via 

overnight mail to: 

Jerry W. Cox, Esq. 

Potomac Strategy Associates 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) j cox@potomacstrategyassociates.com 

(tel) (703) 757-5866 

The Honorable Douglas M. Rawald 

Administrative Law Judge 

Office of Hearings, M-20 

US Department of Transportation 

1200 New Jersey Avenue, SE (E11-310) 

Washington, DC 20590 

TEL (202) 366-5121 

FAX (202) 366-7536 

and the original and one copy to: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Washington, DC 20591 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W I 000 

JVm~ \\ A};k 

KIMBERLY A. HOBBS 

Administrative Officer 

MAY 3 1 2016_ 

Dated 

3 
Harper, Michelle (FAA) 

From: 

Sent: 

To: 

Jerry W. Cox <jcox@potomacstrategyassociates.com> 

Tuesday, April19, 2016 5:19 PM 

Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

Perfect. I'll look forward to "meeting" you then. Will stand by for your call. 

Jerry W. Cox (703) 757-5866 

On Apr 19,2016, at 4:55PM, <Michelle.Harper@faa.gov> <Michelle.Harpcr(ivfaa.gov> wrote: 

Hi JerryHow's 11 a.m. tomorrow morning? I'm teleworking today and don't have access to the file. 

I will be in the office tomorrow. 

From: Jerry W. Cox [mailto:jcox@potomacstrateqyassociates.com] 

Sent: Tuesday, April 19, 2016 4:54PM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I just now got back to my office. I'd be glad to speak w/you now or at any time tomorrow that 

would fit your schedule. 

Jerry W. Cox (703) 757-5866 

On Apr 19, 2016, at II :33 AM, <Michelle.Harper(i/lfaa.gov> <Michelle.l-larper(wfaa.gov> 

wrote: 

Yes, that's fine. 

From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Tuesday, April 19, 2016 11:31 AM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I'll be out of the office until around 4 this afternoon. Would it be convenient to 

speak then? 

On Apr 19, 2016, at 9:55 AM, <Michelle.Harper(illfaa.gov> 

<Michellc.Harper(cllfaa. gov> wrote: 

Hi Jerry1 

~ GOVERNMENT 

i EXHIBIT 

~ j_ 
I will give you a call this afternoon to discuss the judge's Order. 

Regards, 

Michelle Harper 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division- Southern Team 

(404) 305-5200 Tel. 

(404) 305-5223 Fax 

From: Vines, William (FAA) 

Sent: Tuesday, April19, 2016 9:23AM 

To: Jerry Cox 

Cc: Harper, Michelle (FAA) 

Subject: RE: TFSI - FAA - Chino -

Hi Jeny, 

Michelle Harper is now handling this case. I have cc'd 

her on this email. Please accept my apology for the 

delayed response. 

Regards, 

Will Vines 

General Attorney 

404-305-5200 

This message is intended solely for specific recipients. If 

you are not an intended recipient of this communication, 

please delete the original message and notify the sender 

immediately. This message may be contldential, an 

attorney-client communication, attorney-work product, 

part of the agency's deliberative process, and/or contain 

privacy-sensitive information. This email must not be 

forwarded or otherwise shared without express 

pennission of the sender. 

From: Jerry Cox [mailto:jcox@potomacstrateqyassociates.com] 

Sent: Monday, April 18, 2016 7:04 PM 

To: Vines, William (FAA) 

Subject: TFSI - FAA - Chino -

2 
I phoned you April 15 and left a voicemail concerning Judge 

Rawald's April 6 order, but I haven't heard back. Would you 

please call me? 

Jerry W. Cox I Potomac Strategy Associates 12050 Jamieson Ave., Suite 12121 

Alexandria, VA 223141 tel703~757-5866f WNW.ootomacstrategvassociates.com 

3 
Harper, Michelle (FAA) 

From: 

Sent: 

To: 

Jerry Cox <jcox@potomacstrategyassociates.com> 

Wednesday, April 20, 2016 12:00 PM 

Harper, Michelle (FAA) 

Subject: Re: TFSI- FAA- Chino- Case No. FAA-2015-1321 

Attachments: TFSichinoJointReport0423.016.pdf 

Please find attached a proposed final version of the Joint Report in response to Judge Reward's Order dated 

April 6. Unless you see a need for changes, would you please sign on page I and return to me for 

countersignature? I'll finalize the certificate of service at that time. 

I'm sure it's in both parties' interests to get back to the judge promptly. 

I also appreciate your call this morning and look forward to whatever substantive discussions might help to 

resolve this case. 

On Apr 19,2016, at 5:19PM, Jerry W. Cox <jcox(iVpotomacstrategvassociates.com> wrote: 

Perfect. I'll look forward to "meeting" you then. Will stand by for your call. 

Jerry W. Cox (703) 757-5866 

On Apr 19, 2016, at 4:55PM, <Michelle.Harper@faa.gov> 

<Michelle.Harper@faa.gov> wrote: 

Hi JerryHow's 11 a.m. tomorrow morning? I'm teleworking today and don't have access to the 

file. 

I will be in the office tomorrow. 

From: Jerry W. Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Tuesday, April 19, 2016 4:54PM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA- Chino -

I just now got back to my office. I'd be glad to speak w/you now or at any time 

tomorrow that would fit your schedule. 

Jerry W. Cox (703) 757-5866 

! GOVERNMENT 

i EXHIBIT 

i 2.. 
On Apr 19,2016, at 11:33 AM, <Michelle.Harper@faa.gov> 

<Michelle.Harper(cll.faa.gov> wrote: 

Yes, that's fine. 

From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Tuesday, April 19, 2016 11:31 AM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I'll be out of the office until around 4 this afternoon. Would it be 

convenient to speak then? 

On Apr 19,2016, at 9:55AM, 

<Michelle. Harper@faa. gov> 

<Michelle.Harper@faa.gov> wrote: 

Hi JerryI will give you a call this afternoon to discuss the judge's 

Order. 

Regards, 

Michelle Harper 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division- Southern Team 

(404) 305-5200 Tel. 

(404) 305-5223 Fax 

From: Vines, William (FAA) 

Sent: Tuesday, April 19, 2016 9:23AM 

To: Jerry Cox 

Cc: Harper, Michelle (FAA) 

Subject: RE: TFSI - FAA - Chino -

Hi Jerry, 

Michelle Harper is now handling this case. I 

have cc' d her on this email. Please accept 

my apology for the delayed response. 

Regards, 

Will Vines 

2 
General Attorney 

404-305-5200 

This message is intended solely for specific 

recipients. If you are not an intended 

recipient of this communication, please 

delete the original message and notify the 

sender immediately. This message may be 

confidential, an attomey-client 

communication, attorney-work product, pmi 

of the agency's deliberative process, and/or 

contain privacy-sensitive infonnation. This 

email must not be fotwarded or otherwise 

shared without express permission of the 

sender. 

From: Jerry Cox 

[mailto:jcox@potomacstrategyassociates.com] 

Sent: Monday, April 18, 2016 7:04 PM 

To: Vines, William (FAA) 

Subject: TFSI - FAA - Chino -

I phoned you April 15 and left a voicemail 

concerning Judge Rawald's April 6 order, but I 

haven't heard back. Would you please call me? 

Jerry W. Cox I Potomac Strategy Associates I 2050 Jamieson 

Ave .. Suite 12121 Alexandria, VA 223141 tel703-757-5866 

I www.potomacstrateqvassociates.com 

3 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, ) 

Complainant, ) In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

) 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. ) 

JOINT REPORT 

Complainant Federal Aviation Administration (hereinafter referred to as "FAA") and 

Respondent Fisher Scientific Company, LLC, a subsidiary of Thermo Fisher Scientific, Inc., 

(hereinafter "Fisher") jointly respond herein to the Order entered April6, 2016. 

The Order referenced a joint report including "a list of any pending motions that have been 

previously filed but have yet to be ruled upon." One such motion is pending. On June 23,2015, 

Respondent filed a Motion to Dismiss the Complaint. 

Because the motion is potentially dispositive, FAA and Fisher have not yet discussed scheduling 

or the appropriate venue. 

Dated: April 23, 2016 

Respectfully submitted, 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

College Park, G A 3 0320 
Jerry W. Cox, Esq. 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) jcox@potomacJitrategy_a~~qciilj(;s.com 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 
CERTIFICATE OF SERVICE 

On April23, 2016, the undersigned sent by the indicated type of service at least one copy of the 

foregoing Joint Report to each of the persons listed below. 

00 [One Copy by U.S. Postal Mail] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200New Jersey Ave., S.E. (El1-310) 

Washington, DC 20590 

00 [One Copy by Air Courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (El1-31 0) 

Washington, DC 20590 

00[0riginal +One Copy by Postal Mail] 00 [Original+ One Copy by Air Courier] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W1 000 

600 Independence Ave., S.W. 

Washington, DC 20591 

00 [One Copy by Air Courier] 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

1701 Columbia Ave. 

College Park, GA 30337 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1 000 

00[0ne Copy by U.S. Postal Mail] 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

College Park, GA 30320 

Jerry W. Cox, Esq. 
Federal Aviation 

Administration 

Memorandum 

Date: April 29, 2016 

To: Enf~lrcement Division 

From: Acting Assistant Chief Counsel tor Enforcement 

Subject: Delegation of Authority 

J delegate to the following persons my authority to issue enfi.,rcement documents, including 

orders, notices, and civil penalty letters: 

Cynthia A Dominik, Deputy Assistant Chief Counsel for Enforcement; 

Joseph A. Conte, Manager, Special Emphasis Enforcement; 

Brendan A. Kelly, Manager, Northeast Team; 

Gerald A. Ellis, Manager, Southem Team; 

James W. Tegtmeier, Manager, Midwest Team; 

Rena M. Price, Manager, Southwest Team; 

Adam Runkel, Acting Manager, Westem Team; 

James A. Barry, Senior Attorney; 

Agnes M. Rodriguez, Senior Atlorney; and 

Any FAA attorney handling an enforcement case under the direction of me or one of these 

named Enforcement Division personnel. 

Doctunents issued under this delegation are to be issued in my name with a by-line signed by one 

of these persons. 

Patricia A. McNall 

Government 

Exhibit 

F 
Federal Aviation 

Administration 

Memorandum 

Date: October 3, 2016 

To: Enforcement Division 

From: Assistant Chief Counsel for Enforcement. AGC-300 

Subject: Delegation of Authority 

I delegate to the following persons my authority to issue enforcement documents, including 

orders, notices, and civil penalty letters: 

Cynthia A Dominik, Deputy Assistant Chief Counsel for Enforcement; 

Brendan A. Kelly, Manager, Northeast Team; 

Gerald A. Ellis, Manager, Southern Team; 

James W. Tegtmeier, Manager, Midwest Team; 

Rena M. Price, Manager, Southwest Team; 

Adam Runkel, Acting Manager, Westem Team; 

James A. Barry, Manager, Policy, Audit and Evaluation Branch; 

Agnes M. Rodriguez. Manager, Appellate Practice: and 

Any FAA attomey handling an enforcement case under the direction of me or one of these 

named Enforcement Division personnel. 

Documents issued under this delegation are to be issued in my name with a by-line signed by one 

of these persons. 

/dttm<~ Naomi Tsuda 

Government 

Exhibit 

G 
In The Matter Of: 

SERVED: August 29, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 2011 S0700457 

Respondent 

·oRDER SETTING PREHEARING CONFERENCE 

On June 23, 2015, the Respondent filed a Motion to Dismiss Complaint for Insufficiency and 

for Complaint's Violation of Rule 208 ("Motion to Dismiss") in the above captioned case. 

On August 7, 2015, the Complainant filed a Response to the Motion to Dismiss. 

On December 21, 2015, the Respondent filed a Reply to Complainant's Response. In the 

Reply, the Respondent requested oral argument on the issue. 

On March 24, 2016, the case was reassigned to the undersigned judge. 

On April 6, 2016, the undersigned judge issued an Order Directing the Parties to Meet and 

Confer Regarding Litigation and Scheduling Issues in the above captioned case. The order 

required, inter alia, the parties to submit a joint report to the undersigned judge within 30 days of 

that order. 

On April 3 0, 2016, the Respondent filed a unilateral report, stating that attempts to meet and 

confer with the Complainant had failed. 

The Complainant failed to submit a report or request for additional time before the deadline. 

On May 17,2016, the undersigned judge issued an Order to Show Cause and Provide 

Requested Information ("Show Cause Order") in the above captioned case. 

On May 31,2016, the Complaint submitted a Response to the Show Cause Order and 

requested that any discussion of litigation scheduling be postponed until after the undersigned 

judge ruled on the Motion to Dismiss. 

Pursuant to 14 C.F.R. § 13.205(a)(l) and (7), IT IS HEREBY ORDERED: 

1. The parties shall appear by telephone for a prehearing conference with the undersigned 

judge on October 4, 2016 at lOam Eastern time. ~ Government i Exhibit 

t H 
2. The parties shall access the conference by dialing telephone number 888-204-5984 and 

then inputting access code 6392406 when prompted. 

3. During the conference, the parties shall present oral arguments regarding the Motion to 

Dismiss. 

;~WALD Administrative Law Judge 

Attachment: Service List 
Docket No. FAA-2015-1321 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC--430 

Wilbur Wright Building-Suite 2W10001 

Jerry W. Cox, Respondent's Counsel 

Counsel for Thermo Fisher Scientific, Inc: 

and Fisher Scientific Co., LLC 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

TEL: 703-757-5866 

ONE COPY 

Email: j cox@potomacstrategyassociates.com 

Andrea Michelle Harper, Complainant's Counsel 

Senior Attorney, Office of the Regional Counsel 

Enforcement Division, Southern Team 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

The Honorable Douglas M. Rawald, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC--430. 
R 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS SEP: 

WASHINGTON, DC HEARr'''v 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, 

v. 

} 

} 

} 

In the Matter of Fisher 

Scientific Company. LLC 

Docket No. FAA-2015-1321 

} (Civil Penalty Action) 

FISHER SCIENTIFIC COMPANY, LLC, 

Respondent. 

} 

} 

Judge Rawald 

RESPONDENT'S MOTION 

TO STRIKE COMPLAINANT'S RESPONSE TO SHOW CAUSE ORDER 

AND TO 

DISMISS THE COMPLAINT AS MOOT 

History of the FAA's lne)(c.;usable _Delay in the Proceedings 

The Federal Aviation Administration's Southern Regional Counsel ("Regional Cotmsel" or 

"FAA") seeks a $5,850 fme relating to a small shipment oflye almost five-and-a-half years ago. 

In the 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientific 

Company ("Fisher") has moved to dismiss this case for the following four reasons: 

1. The Complaint is legally insufficient because, even if the alleged facts were assumed 

to be true, it fails to state a claim for civil penalties under applicable statute (per 

Respondent's Motion to Dismiss Complaint for Insufficiency): 

2. The two-year statute oflimitations for initiating such a claim under the Federal 

Aviation Act ran more than a year before Regional Counsel served the required 

Notice (per Respondent's Motion to Dismiss Complaint for Complainant's Violation 

of Rule 208); 

3. Regional Counsel failed to file a timely response to Respondent's Motion to Dismiss 

(per Respondent's Opposition to Complainant's Motion for Extension); and 

4. Regional Counsel invited dismissal of the Complaint by ignoring the Administrative 

Law Judge's April6, 2016, Order to confer with Respondent's counsel and file a 

Joint Repoti (per Fisher's Motion to Sanction FAA's Noncompliance). 

Regional Counsel purported to file a Response to Show Cause Order on May 31,2016. No 

counsel of record for FAA signed the submission, however, so it violated Rule ll(a) of the 

Federal Rules of Civil Procedure ("FRCP"). Respondent promptly called this v~i~o:~.jlajjl!~· ~~~~\ 

Government ~ Exhibit ~ 

~ ,- ~ A-
Respondent Motion to Strike and to Dismiss 

Regional Counsel's attention; Regional Counsel took no couective action. Accordingly, under 

FRCP ll(a), "the conrt must strike an unsigned paper" (emphasis supplied), and FAA must be 

deemed to have failed to respond to the Show Cause Order, much less to have provided any 

reason for the Judge not to dismiss the action for the reasons stated in that Order. 

Regional Counsel's persistent delay and disregard of applicable rules and statutes has also 

rendered the Complaint essentially moot nnder the five-year, government-wide statute of 

limitations barring the commencement of any civil proceedings more than five years after the 

date the goverrunent's claim allegedly accrued. 28 U.S.C. Sec. 2462. See also US. v. Core 

Laboratories, 759 F.2d 480 (5th Cir. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

lt is undisputed that the alleged act at issue in this matter occurred on July 20, 2011. That was 

five years and two months ago. 

It is pointless and grossly wasteful for Regional Cow1sel to insist on pursuing this case. They are 

asking the Administrative Law Judge to devote considerable time and effort in deciding motions 

to dismiss that have been pending for the last 15 months and, even if FAA were to prevail on the 

motions, Regional Counsel offers the prospect of even more wasted effort in a hearing FAA 

conservatively estimates would consun1e at least three full days of the Judge's time. Even if one 

were to assume that the end result of that proceeding would be a final order that Respondent pay 

a $5,850 civil penalty, the Government is bmred by statute from bringing any court action to 

compel payment. 

Respondent's cotmsel attempted to reach Regional Counsel of record by telephone to ask 

whether this motion would be necessary, but her office receptionist refused to take a message 

and slanm1ed down the phone in mid-conversation. Ms. Harper did not return the call. 

WHEREFORE, Respondent submits that the Complaint must be disnlissed with prejudice on any 

or all of the grounds stated above. 

Dated: September 23, 2016 

1 er# :W .lcc12s; E~q. I { ( (i 

2050 Jamieson Aw/, Suite 1212 

Alexm1dria, VA 22314 

(email) . " 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific. Inc .. and 

Fisher Scientific Co .. LLC 

2 
Respondent Motion to Strike and to Dismiss 

CERTIFICATE OF SERVICE 

On September 23,2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Motion to each of the persons listed below. 

D [One Copy by U.S. Certified Mail] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

0 [Original+ One Copy by Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wlight Bldg., Suite 2W1 000 

600 Independence Ave., S.W. 

Washington, DC 20591 

D [One Copy by Air Courier] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

1701 Columbia Ave. 

College Park, GA 30337 

0 [One Copy by air courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-31 0) 

Washington, DC 20590 

D [Oiiginal + One Copy by Air Courier] 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn: Heuring Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

Jerry W!i rx~sq.: \__/ I 

•I 

3 
In The Matter Of: 

SERVED: October 6, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARlNGS 

WASHINGTON, DC 

Docket No. FAA-2015-B21 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

c,. 

Case No. 2011S0700457 

Respondent 

ORDER STAYING PROCEEDINGS 

On October 4, 2016, the undersigned judge held a prehearing conference where the parties 

presented oral arguments regarding the Respondent's Motion to Dismiss Complaint for 

Insufficiency and for Complainant's Violation of Rule 208. During the prehearing conference, 

the undersigned judge reserved ruling on Respondent's previously filed motions. 

That same day, Respondent's Counsel filed a Notice oflnterlocutory Appeal of Right based 

upon a failure of the Administrative Law Judge to dismiss the proceedings in accordance with 

14 C.F.R. §13.215. 

Pursuant to 14 C.F.R. § 13.219(c), IT IS HEREBY ORDERED: the proceedings in this case 

are stayed until the FAA decisionmaker issues a decision on the interlocutory appeal. 1 

Attachment: Service List 

DOUGLAS M. RAW ALD 

Administrative Law Judge 

1 In the Notice of Interlocutory Appeal of Right, the Respondent requested a copy of the transcript from the October 

4, 2016 prehearing conference be provided no later than October I 0, 2016. Pursuant to the contract with the court 

reporting company, a copy ofthe transcript will be provided to all parties within 15 days of the hearing. 1f 

necessary, the Respondent should contact For The Record, Inc. at 301-870-8025 to attempt to obtain an expedited 

copy, or request additional time from the FAA decisionmaker to submit the appellate brief. Government ~ Exhibit 

J J ~ 
Docket No. FAA-2015-1321 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl0002 

Jerry W. Cox, Respondent's Counsel 

Counsel for Thermo Fisher Scientific, Inc. 

and Fisher Scientific Co., LLC 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

TEL: 703-757-5866 

ONE COPY 

Email: jcox@potomacstrategyassociates.com 

Andrea Michelle Harper, Complainant's Counsel 

Senior Attorney, Office of the Regional Counsel 

Enforcement Division, Southern Team 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

The Honorable Douglas M. Rawald, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

2 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S. W .• Wilbur Wright Building-Suite 2Wl000, Washington, 

DC 2059!: Attention: Hearing Docket Clerk, AGC-430. 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

FISHER SCIENTIFIC COMPANY, LLC, } Judge Rawald 

Respondent. } 

NOTICE OF 

INTERLOCUTORY APPEAL 

OF RIGHT 

Please take NOTICE that Respondent Fisher Scientific Company, LLC, a subsidiary of Thermo 

Fisher Scientific, Inc., (hereinafter referred to as "Fisher") hereby files, pursuant to Rule 219( c) 

of the FAA's Rules of Practice ("Rules"), 14 C.F.R. Sec. § 13.219(c), an interlocutory appeal of 

right based on the Administrative Law Judge's failure to dismiss the proceedings in accordance 

with Rule 215, 14 C.P.R. Sec.§ 13.215. 

Rule 219( c) provides, in pertinent part, the following: "If a party notifies the administrative law 

judge of an interlocutory appeal of right, the proceedings are stayed until the FAA decision 

maker issues a decision on the interlocutory appeal." !d. (emphasis supplied). 

Please take further NOTICE that Respondent requests a copy of the transcript of the Pre hearing 

Conference that the administrative law judge convened on October 4, 2016, without the 

appearance by or attendance of any counsel ofrecord for Complainant. It will be crucial for 

Respondent to receive the transcript no later than October 10, 2016, to enable Respondent to 

quote from it, provide a copy of it and otherwise to file with the FAA decision maker on a timely 

basis the supporting documents required under Rule 219( d). 

Government 

Exhibit 

K 
WHEREFORE, Respondent respectfully requests the administrative law judge to stay all further 

proceedings in this matter and, if necessary, the agency decision-maker to issue an order that the 

administrative law judge comply with the prohibition on further proceedings as required by Rule 

219(c), 14 C.F.R. § 13.219(c). 

Dated: October 4, 2016 

"/ ' \ 

Jerry W. Cox, Esq. 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 
CERTIFICATE OF SERVICE 

On October 4, 2016, the undersigned sent by the indicated type(s) of service at least one copy of 

the foregoing Notice on each of the persons listed below. 

0 [One Copy by U.S. Certified Mail] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

0 [Original+ One Copy by Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2Wl000 

600 Independence Ave., S.W. 

Washington, DC 20591 

00 [One Copy by Air Courier] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Regional Counsel, ASO-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

170 I Columbia Ave. 

College Park, GA 30337 

0 [One Copy by air courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

00 [Original+ Two Copies by Air Courier] 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2WI 000 

0 [One Copy by U.S. Mail] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

Jerry W., 
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