InThe Matter Of: U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.
DocketNo. FAA-2015-1321 Fisher Scientific Company, LLC ) ) ) ) ) Case No. 2011S0700457 Respondent
COMPLAINANT'S REPLY BRIEF ,'':::_

Pursuant to FAA Civil Penalty Rules ofPractice1 13.219(d), Complainant files this reply showing why Respondent's interlocutory appeal must be dismissed. Respondent asserts that the interlocutory appeal is permissiblebecausethe Administrative Law Judge (ALJ) failed to dismiss the proceedings under Rule 13.215 (related to withdrawal ofa 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appeal is premature because the ALJ did not rule on Respondent's motion to find the Complaint constructively withdrawn.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 mustbe dismissed. Statement ofthe 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 inthe April6, 2016 Order. Id. at 2. The Show Cause Order also required Complainant to file a statement explaining why it failed to complywith 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 thejoint response. Id. Additionally, Complainant noted that Respondent could have filed ajoint 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." 2Complaint based on Complainant's failure to file a response to the Show Cause Order. See Exhibit I at 1-2 (makingthe argumentbyreference to the ALI's May 17th Show Cause Order). Complainantparticipated in the October 4thpreheating conference viamanaging 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 inresponse to Respondent's Notice oflnterlocutoryAppeal, the ALJ did not issue an order following the October 4thprehearing 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 inthis 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 ifthe ALJ had ruled that Complainant did not constructively withdraw the Complaint, this ruling would not be subject to an interlocutory appeal ofright and would be the correct ruling on the facts ofthis case.

3I. The interlocutoryAppeal is Premature Typically, a party may not appeal a ruling or decision ofan ALJ until the initial decision is entered on the record. 14 C.F.R. § 13.219(a); In the Matter ofKyle 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 ofthe appeal. See 14 C.F.R. § 13.219(d) (emphasis added). The Decisionmaker will dismiss apremature appeal. In the Matter ofKyle Ponsford, FAA Order No. 2010-3 at 3. Assuming, arguendo, that the Rules of Practice permit an interlocutory appeal ofright from an ALJ decision finding no constructive withdrawal ofa complaint or request for hearing, Respondent's interlocutory appeal ofright 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 ofKyle Ponsford, FAA OrderNo. 2010-3 at 3. II. The Interlocutory Appeal is not Permissible Under Rule 13.219(c) Because Complainant did not Withdraw Complaint The Rules ofPractice limit an interlocutory appeal ofright to three specific situations: (1)
an ALJ ruling or order barring a person from the proceedings; (2) failure ofthe ALJ to dismiss theproceedings in accordance with 14 C.F.R. § 13.215 (providing for dismissal ofproceedings if 4the 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 ofright is whether the ALJ entered aruling inviolation ofRule 13.219(c)(1)-(3).3 See In the Matter ofAlaska Airlines, Inc., FAA OrderNo. 91-54, 1991WL733783, at 1 (November 6, 1991). The Decisionmakermay reject frivolous or dilatory interlocutory appeals andbar 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 inthe October4thpre 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. Whilebothparties 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 ofright, Complainantnotes that the parties' April 20thmeetingresulted in an agreed upon

3 This briefonly addresses the facts relevant to the alleged basis for this interlocutory appeal ofright. 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 aninitial decision issuedbythe ALJ at the conclusion ofthis matter. 5

### a response to the April 6th Order that Respondent drafted. See In

### the Matter ofAlaska Airlines, Inc., FAA Order No. 91-54, at 1; Exhibit E. Accordingly, Respondent's argument that Complainant failed to meet and conferis erroneous. B. Complainant's May31st 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 ofrecord, 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 onbehalfofthe attorney ofrecord 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 ofFlorida). 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 ifattorney Harper had personally signed the document
±orpurposes ofRule 13.207(a). See Exhibit L. 

### Even ifan attorney ofrecord 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 betweenRule ofPractice 13.207(a) and Fed.R.Civ.P. ll(a). As this proceeding is governedbythe Rules ofPractice, not the FederalRules ofCivil Procedure, Complainant will focus onRule 13.207(a). See Inthe Matter ofTokyo Air Cargo USA, FAA OrderNo. 2004-7, 2004WL2416222, at 2 (September 22, 2004). 613.207(a). In addition to an attorney ofrecord, a "party" or "party's representative" is permitted to sign a document. See 14 C.P.R. § 13.207(a). The Rules ofPractice 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 ChiefCounsel, 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 inthe 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 behalfofComplainant. See Briefin Support ofRespondent's Interlocutory Appeal ofRight at 4, 7. Regardless ofwho 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 Briefin Support ofRespondent's Interlocutory Appeal ofRight 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 Briefin Support of Respondent's Interlocutory Appeal ofRight at 4, 7. Complainant disputes the accuracy ofthe
7

### alleged comments, butthis argument is beyond the scope ofan interlocutory appeal ofright. 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 ofComplainant's participation, this does not change the fact that Complainant participated. See Exhibit J. 

### Accordingly, Complainant participated inthe October4thprehearing 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, timelyresponded to the ALI's Show Cause Order, and participated in the October 4thprehearing 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 citedbyRespondent actually compel a finding that Complainant never constructively withdrew the Complaint. Accordingly, Respondent's argument that Complainant constructivelywithdrew the complaintis baseless.

5FAAv. Butte Aviation Inc., DocketNo. CP03NM0014, 2004WL350392 (February 12, 2004). 6 In the Matter ofEdwardV. Parks, Docket No. CP98AL0005, 1999WL33739451 (February 17, 1999). 7 FAAv. BonanzaValleyAviation, Inc., FAADocket No. CP94CE0036, 1994WL16054306 (May4, 1994). 8 Inthe Matter ofChristopherMcCann, DocketNo. FAA-2014-0405, 2016WL3662616 (June 29, 2016); Inthe Matter ofiXL PremiumLubricants. Inc., DocketNo. FAA-2015-0634, 2016WL3662615 (June 28, 2016). 8III. Conclusion At a minimum, this interlocutory appeal must be dismissed as premature because the ALJ merely reservedjudgment on Respondent's motions. Even ifRespondent's interlocutory appeal
was not premature, Complainant did not constructivelywithdraw the Complaint and continues to participate in this matter. Therefore, this interlocutory appeal mustbe 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 ofOctober, 2016. Naomi Tsuda Assistant ChiefCounsel for Enforcement
By: Ryan M. Landers Enforcement Division, SouthernTeam 1701 ColumbiaAve. College Park, GA 30337 Tel: 404-305-5200 Fax: 404-305-5223

9CERTIFICATE OF SERVICE I certifythat on October 21,2016, the foregoing Complainant's Reply Briefwas filed withthe Decisionmaker and the HearingDocket Clerkvia Federal Express as follows: Original and One Copy: Federal Aviation Administration 600 Independence Avenue, S.W. WilburWrightBuilding, Suite 2Wl000 Washington, D.C. 20591 Attention: HearingDocket Clerk, AGC-430 In addition, I certifythat 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 ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, SE (Ell-310) East Building GroundFloor Washington, DC 20590 JerryW. Cox 2050 JamiesonAve., 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 ) ) ) ) ) DocketNo. FAA-2015-1321 Case No. 2011S0700457

ORDERDIRECTING THE PARTIES TO MEET AND CONFERREGARDING LITIGATION AND SCHEDULING ISSUES
The above captionedcase was reassignedto the undersignedjudge onMarch 24, 2016. By order ofthe ChiefAdministrative Law Judge, any previously established date for a prehearing conference or trial was suspended. Those dates are nowvacated and there is a need to establish a new litigation schedule for this case. To assistthe undersignedjudge, the parties shouldmeet and conferto propose a mutually agreeable schedule. An administrative lawjudgemayhold conferences to, among otherthings, "settle [or] simplifythe issues by consent oftheparties." 1 Pursuantto 14 C.F.R § 13.205(a)(l) and (7), it is hereby ORDERED:
1. The parties shallprivately conduct an informal conference to meaningfully discuss litigationissues and proposed scheduling. 2. The parties shall draft ajointreportproviding:
a. a suggestedvenue, b. a proposed schedule for the completion ofdiscovery (or anindicationthat discoveryis complete), c. a list ofany pending motions.thathave beenpreviouslyfiled buthave yetto be ruled upon, d. a proposed date for atelephonicpreheating conference withtheundersigned judge,

1 14 C.F.R. § 13.205. Government Exhibit 

# Ae. a proposed due date for the filing ofany prehearing motions (including a proposed date for a telephonic hearing on any filed motions, ifso desired), and f. proposed hearing dates. The parties shouldprovide at leastthree 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 submitthe report to the undersignedjudge at the Office ofHearings by fax, express carrier, or personal delivery
no later than 30 calendar days after the date ofservice ofthis order.



# ~ DOUGLAS M. RAWALD Administrative Law Judge

Attachment: Service List

2Docket 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: 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 ofthe 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant 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 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 TFSlchinoJo intRepo110423.016.pdf Attachments:
Please find attached a proposed !ina! version ofthe 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 ofservice at that time. I'm sure it's in both parties' interests to get back to thejudge 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 - Ijust 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 

# 8On 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 ofthe office w1til aroWld 4 this afternoon. Would it be convenient to speakthen?

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 thejudge's Order. Regards, Michelle Harper Senior Attorney Office ofthe 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. Ifyou are not an intended recipient ofthis communication, please delete the original message and notify the sender immediately. This message may be confidentiaL an attorney-client communication, attorney-work product, part ofthe agency's deliberative process, and/or contain privacy-sensitive infonnation. This email must not be forwarded or otherwise shared without express pennission ofthe sender. From: Jerry Cox [mailto: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'theard 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 wvvwootomacstrateqvassociates.com

3U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS WASHINGTON,DC

FEDERAL AVIATIONADMINISTRATION, } Complainant,

v. FISHERSCIENTIFIC COMPANY,LLC, 

### Respondent. } } } ) } 

## l IntheMatter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald

REPORT OFFISHER SCIENTIFIC IN RESPONSETO ORDERSERVEDAPRIL 6, 2016, AND MOTION TO SANCTION FAA'S NONCOMPLIANCE By Order entered April 6, 2016, JudgeRawald directed Complainant, the Southern Regional Counsel ofthe Federal Aviation Administration (hereinafterreferred to as "FAA") and RespondentFisher Scientific Company, LLC (hereinafter "Fisher"), to file a JointReport addressing certain pre-hearing matters that were listed inthe Order, including "a list ofany pending motions that have been previously filed but have yet to be ruled upon." Fisherregrets to report thatFAA counsel essentially went "AWOL" and thwarted Fisher's diligent efforts torespond to the Orderwith a Joint Report. Fisher'sundersigned 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 avoicemail stating thatthe call was in reference to the April 6 Order. l'v1r. Vines neverreturned 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 handlingthe case, even though FAA never updated the service list. On April 20, Ms. MichelleHarper phonedto say she was the attorney responsible forFAA'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. Fisherrequested that she either concurwith the draft and sign itor suggest any edits she thought appropriate. Ms. Harper did neither. Government Exhibit 

# cReportof Fisher Scientific A week later, on April 27, the undersigned phoned Ms. Harperbut, once again, she did not answer hertelephone. Fisher's counsel left avoicemail reminding her thatFisherwas determined to comply with the Orderbut- without any response from her- itwould be impossibleto file the required JointReport. Ms. Harpernever responded to the voicemail. On April 29 -thedeadlinefor finalizing and mailing theJointReport- the undersigned telephoned Ms. Harper again, but she did not answer hertelephone. Fisher's counsel indicated in a voice mail that ifFAA continued to ignore the proposed draft ofthe JointReport, Fisherwouldhave no choice butto withdraw it and file its own unilateral response to the Order Ms. Harper did not return the call orotherwise respond. FAA's apparent disregard ofthe April 6 Orderisjustthe latest chapterin a five-yearhistory of the Office ofSouthernRegional Counsel dragging its feet and utterly ignoring applicablelaws and Rules ofPractice. This case arises from an alleged incidentthat occurred five years ago, on July 21, 2011. FAA waited until days before the statute oflimitations expired and filed aNotice ofProposed Civil Penalty in July, 2013. AfterFisherpointed out thattheNotice was based on regulatory requirements thatwere not in effectin 2011, FAAfiled an Amended Notice on July 24, 2014, morethan three years afterthe alleged incident and morethan one year after the statute of limitations expired. FAAwaited almost anotheryear, until June, 2015, to file its Complaint. On June 23, 2015, RespondentFisher filed aMotion to Dismiss the Complaint for legal insufficiency and for being barred by the statute oflimitations. The FAA's own Rules ofPractice allowed FAA 10 days to opposeFisher'sMotion toDismiss, butthe agency did not file its Memorandum in Opposition until August 17, 2015, almost two months after it was due. Fisher'sMotiontoDismiss has been pendingfor nearly ayear. The most appropriate way to sanction such egregiously dilatory conduct and getthis ancient case offthe docket would be to order SouthernRegional Counsel to SHOW CAUSE why dismissal should not be ordered on one or more ofthe following grounds: 1. FAA'sfailure to comply with the April6, 2016, Order 2. FAA's defaultin failing to file a timely opposition toRespondent's June 23, 2015, Motion to Dismiss. (No extension was permitted under FAA'sRules ofPractice for the reasons stated in Respondent's Opposition to FAA'sMotion for Extension.) 3. FAA's decision to wait more thanthree years afterthe alleged incident and more than a year afterthe statute oflimitations expired to lodge crucial allegations in the Amended Notice. (Respondent's Memorandum in Support and its December21, 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.)

2Reportof 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'sMemorandum. WHEREFORE, Respondent respectfully requests the Judge to command Agency respectfor his Orders and for the substantive and procedural laws underlying the above-captioned case by DISMISSINGwith prejudice FAA's Complaint Respondent reiterates its requestfor 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

3Reportof FisherScientific



### CERTIFICATE OF SERVICE
On April 30, 2016, the undersigned sent by the indicated type ofservice at leastone copy ofthe foregoing JointReport to each ofthe persons listedbelow. 0 [One Copy by U.S. Postal Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200New Jersey Ave, S.E. (Ell-310) Washington, DC 20590 0[0riginal +OneCopy by Postal Mail] HearingDocket Clerk, AGC-430 Federal Aviation Administration WilburWright Bldg., Suite 2Wl000 600 IndependenceAve., S.W. Washington, DC 20591 D [One Copyby Air Courier] MichelleHarper, Esq. Regional Counsel, AS0-7 U.S. Department ofTransportation Federal Aviation Administration Southern Region 1701 Columbia Ave. College Park, GA 30337 0 [One Copy by Air Courier] TheHon. Douglas M. Rawald Office ofHearings, M-20 US. Department ofTransportation 1200 NewJersey Ave., S.E. (Ell-310) Washington, DC 20590 D [Original +One Copy by AirCourier 

## J Federal Aviation Administration 800 Independence Ave., S.W. Washington, DC 20591 Attn HearingDocket Clerk, AGC-430 WilburWrightBuilding- Suite 2W1000 0[0neCopy by U.S. Postal Mail] Michelle Harper, Esq. Regional Counsel, AS0-7 U.S. Department ofTransportation Federal AviationAdministration Southern Region P.O. Box 20636 CollegePark, GA 30320

i
. 

### Jerry W.:Cox, Esq.

4

### 2016-05-17 08:17

In The MatterOf: 

### 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. 

### 20II 80700457 Respondent 

### ORDERTO SHOW CAUSE ANP 

### PROVWE REQUESTED INFORMATION On April6, 2016, the undersignedjudge issued an Order Directing the Parties to Meet 

### and Confer Regarding Litigation and Scheduling Issues in the above captioned case. The order required, ln!eralia, 

### the parties to submit ajoint report to the undersignedjudge within 30 days of that order. On 

### April 30,2016, the Respondent !1lecl aunilateral 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 lawjudge is empowered to regulate the course ofahearing. As previot1sly noted 

### by the FAA Administrator: [t'lhe Adminislmtorexpects 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 ofadjudiCIIticm:' 

### 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

1Respondentlililed, however, to provide all the inllwmation requested in the April6, 2016 Meet and Confer Order. 'Counsel for the COtl1plllinanll11cd anotice ofappeou·ancc on May 10.2016, but t\lilcd to i11clUde the infor111ation

**r~quired** by tho undersignedjUdge's Apr·il 6, 2016 Meet ond Confer Order or ot1br aresponse 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, 20t6. This counsel wos thcre1i>re assigned to this matter well before the deadline ibr tiling aresponse t(ltfre April 6, 2016 Meet ll11d CNrler Order. 'AnWI'/l'W1 Air/ine.t Inc, FAA OrderNo. 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 undersignedjudge may be deemed a constructive withdrawal ofthe request for hearing or complaint by 

### the party demonstrating

**su~h** 

### nlack ofinterest in participating in these proceedings.' Pursuant to 

### 14 C.P.R.§ 13.205(a)(l), (6), and (7), it is hereby 

### ORDERED: I. No 

### laterthan 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 astatement 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. Ifthe Complainant fails to Ilk this statementby 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. RAWALD Administrative 

### L<\W Judge

Attachment: Setvioe 

### List

·'Sec, e.g.. Ill/,/'owe!' Supp(v, DocketNo. CPOtSOOOt5 (PAA Aug. 7, 200I) (Al..J construed Respo11dent's silence as aconstructive withdrawal ofrequest for ahearing), appeal dl8missed, FAA OrderNo. 2002-10 (Apr. 17. 20021: 13/wtkson, Dt>ckctNo. 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 OrderNo. 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 OrderNo. 20 11·4, at 4 (.Ian. 14,20II) ("Apollo's failure to appear lit the heari11g lind to pui'SUe its

**reque~t** 1\Jrhearing without good cause constiiiJtcd aconstt•uctive withdrawal ofits 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 

### Scientitle. 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 ofthe 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 ofHearings, M-20 U.S. 

### Department ofTransportation 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 orby expedited courier, lloe the following address: Fedeml i\vimion i\dtninistrallon, 600 Independence Avenue, S,W., Wilbur Wl'ight Buildhig··-Suite 2WI000. Washington, DC 20591: Attention: Hearing Docket Clerk, AGC-430. p 

### 3/3UNITED 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 ofthe 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



# Ewould 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 thejudge'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 ofMay, 2016.

## ~?7**£/~'** )ld/111.5-1', 

### ri-1/,-/l,.y 

# in ANDREA MICHELLE HARPER Senior Attorney Office ofthe ChiefCounsel Enforcement Division, Southern Team

2CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy ofthe foregoing Response to Orderto Show Cause In the Matter ofFisher Scientific LLC, Docket No. FAA-2015-1321, via overnight mail to: Jerry W. Cox, Esq. Potomac Strategy Associates 2050 Jamieson Ave., Suite 1212 Alexandria, VA 22314 (email)jcox@potomacstrategyassociates.com (tel) (703) 757-5866 The Honorable Douglas M. Rawald Administrative Law Judge Office ofHearings, M-20 US Department ofTransportation 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 2WI000



# JVm~

# \\A};k KIMBERLY A. HOBBS Administrative Officer 

## MAY 3 12016_ Dated



### 3Harper, 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. Iwill 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

- Ijustnow got back to my office. I'd be glad to speak w/you now or at any time tomorrowthat 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'sfine. 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 ofthe 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 ofthe Chief Counsel Enforcement Division- Southern Team (404) 305-5200Tel. (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 nowhandling this case. I have cc'd her onthis 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 intendedrecipient ofthis communication, please delete the original message and notify the sender immediately. This message may be contldential, an attorney-client communication, attorney-work product, part ofthe agency's deliberative process, and/or contain privacy-sensitive information. This email must not be forwarded or otherwise shared without express pennission ofthe sender.
From: Jerry Cox [mailto:jcox@potomacstrateqyassociates.com] Sent: Monday, April 18, 2016 7:04 PM To: Vines, William (FAA) Subject: TFSI - FAA - Chino -

2Iphoned you April 15 and left a voicemail concerning Judge Rawald's April 6 order, butI haven'theard back. Would you please call me? JerryW. Cox 

### IPotomac Strategy Associates 12050 Jamieson Ave., Suite 12121 Alexandria, VA 223141

**tel703~757-5866f** WNW.ootomacstrategvassociates.com

3Harper, 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 TFSichinoJointReport0423.016.pdf Attachments:
Please find attached a proposed final version ofthe 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 ofservice at thattime. I'm sure it's in both parties' interests to getbackto thejudge 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 - Ijustnow 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..OnApr 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 ofthe office until around 4 this afternoon. Would it be convenientto 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 thejudge's Order. Regards, Michelle Harper Senior Attorney Office ofthe 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'dher on this email. Please accept my apology for the delayedresponse. Regards, Will Vines 2

### General Attorney 404-305-5200 This message is intended solely for specific recipients. Ifyou are not an intended recipient ofthis communication, please delete the original message and notify the sender immediately. This message may be confidential, an attomey-client communication, attorney-work product, pmi ofthe agency's deliberative process, and/or contain privacy-sensitive infonnation. This email must not be fotwarded or otherwise shared without express permission ofthe sender. From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] Sent: Monday, April 18, 2016 7:04 PM To: Vines, William (FAA) Subject: TFSI - FAA - Chino - Iphoned you April 15 and left a voicemail concerning Judge Rawald's April 6 order, but I haven'theard back. Would you please call me? Jerry W. Cox I Potomac Strategy Associates I2050 Jamieson Ave
.. Suite 12121 Alexandria, VA 223141 tel703-757-5866 I www.potomacstrateqvassociates.com

3U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

FEDERAL AVIATION ADMINISTRATION, ) Complainant, ) Inthe Matter ofFisher Scientific Company, LLC DocketNo. 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 ofThermo Fisher Scientific, Inc., (hereinafter "Fisher")jointly respond herein to the Order entered April6, 2016. The Order referenced ajointreport including "alist ofany pendingmotions that have been previously filed buthave 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 notyet discussed scheduling or the appropriate venue. Dated: April 23, 2016 Respectfully submitted,

Michelle Harper, Esq. Regional Counsel, AS0-7 U.S. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 College Park, GA 30320Jerry 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., LLCCERTIFICATE OF SERVICE

On April23, 2016, the undersigned sent by the indicated type ofservice at least one copy ofthe foregoing Joint Report to each ofthe persons listed below.
00 [One Copy by U.S. Postal Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Ave., S.E. (El1-310) Washington, DC 20590 00 [One Copy by Air Courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (El1-310) 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 ofTransportation 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 2W1000 00[0ne Copy by U.S. Postal Mail] Michelle Harper, Esq. Regional Counsel, AS0-7 U.S. Department ofTransportation 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 ChiefCounsel 

### tor Enforcement Subject: Delegation ofAuthority

Jdelegate to the following persons my authorityto 

### issue enfi.,rcement documents, including orders, notices, and civil penalty letters: Cynthia A Dominik, Deputy Assistant ChiefCounsel 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 ofme or one ofthese named Enforcement Division personnel. Doctunents issued under this delegation are to be issued in my name with aby-line signedby one ofthese persons.

Patricia A. McNall



### Government Exhibit



# F

# Federal Aviation Administration 

# Memorandum Date: October 3, 2016 To: Enforcement Division From: Assistant ChiefCounsel for Enforcement. AGC-300 Subject: Delegation ofAuthority

Idelegate to the following persons my authority to issue enforcement documents, including orders, notices, and civil penalty letters: Cynthia A Dominik, Deputy Assistant ChiefCounsel 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 ofme or one ofthese named Enforcement Division personnel. Documents issued under this delegation are to be issued in my name with a by-line signed by one ofthese persons.



# /dttm<~ Naomi Tsuda



### Government Exhibit



# GIn The Matter Of: 

### SERVED: August 29, 2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2015-1321 Fisher Scientific Company, LLC ) ) ) ) ) CaseNo. 2011 S0700457 Respondent ·oRDERSETTING PREHEARING CONFERENCE On June 23, 2015, the Respondentfiled aMotionto Dismiss Complaintfor Insufficiency and for Complaint'sViolation ofRule 208 ("Motionto Dismiss") inthe above captioned case. OnAugust7, 2015, the Complainant filed a Response to the Motionto Dismiss. On December 21, 2015, the Respondent filed a Replyto Complainant's Response. Inthe Reply, the Respondentrequested oral argument onthe issue. OnMarch 24, 2016, the case was reassigned to the undersignedjudge. OnApril 6, 2016, the undersignedjudgeissued an OrderDirectingthe Partiesto Meet and Confer Regarding Litigation and Scheduling Issues inthe above captioned case. The order required, 

### interalia, the parties to submit ajointreport to the undersignedjudge within 30 days of that order. On April 30, 2016, the Respondentfiled aunilateral report, statingthat attempts to meet and confer withthe Complainanthad failed. The Complainantfailed to submit areport orrequest for additional time before the deadline. On May 17,2016,the undersignedjudgeissued an Order to ShowCause andProvide Requested Information ("ShowCause Order") inthe above captioned case. OnMay 31,2016,the Complaint submitted a Response to the ShowCause Order and requestedthat any discussion oflitigation scheduling bepostponeduntil afterthe undersigned judgeruled onthe Motionto Dismiss. Pursuantto 14 C.F.R. § 13.205(a)(l) and (7), ITIS HEREBYORDERED: 1. Theparties shall appear by telephone for aprehearing conference withthe undersigned judgeon October4, 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 

### whenprompted. 3. During the conference, the parties shall present oral arguments regarding the Motionto Dismiss.



# ;~WALD Administrative LawJudge Attachment: Service ListDocketNo. 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 WilburWright Building-Suite 2W1000 1
Jerry W. Cox, Respondent's Counsel Counsel for Thermo Fisher Scientific, Inc:

and Fisher Scientific Co., LLC 2050 JamiesonAve., Suite 1212 Alexandria, VA 22314 TEL: 703-757-5866 ONE COPY

Email: 

### jcox@potomacstrategyassociates.com AndreaMichelle Harper, Complainant's Counsel SeniorAttorney, Office ofthe Regional Counsel Enforcement Division, Southern Team Federal AviationAdministration P.O. Box20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 The Honorable Douglas M. Rawald,Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant 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. } } } Inthe Matter ofFisher Scientific Company. LLC DocketNo. FAA-2015-1321 } (Civil Penalty Action) FISHERSCIENTIFIC COMPANY, LLC, Respondent. } } Judge Rawald
RESPONDENT'SMOTION TO STRIKE COMPLAINANT'SRESPONSE TO SHOW CAUSE ORDER AND TO DISMISS THE COMPLAINT AS MOOT History ofthe FAA's lne)(c.;usable_Delay inthe 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-halfyears ago. In the 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientific Company ("Fisher") has movedto dismiss this case for the following four reasons: 1. The Complaint is legally insufficient because, even ifthe alleged facts were assumed to be true, itfails to state a claim for civilpenalties under applicable statute (per Respondent's Motionto 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 servedthe required Notice (per Respondent's Motionto Dismiss Complaint for Complainant'sViolation ofRule 208); 3. Regional Counsel failed to file a timely response to Respondent's Motion to Dismiss (per Respondent's Oppositionto Complainant's Motion for Extension); and 4. Regional Counsel invited dismissal ofthe Complaint by ignoring the Administrative Law Judge's April6, 2016, Orderto confer with Respondent's counsel and file a Joint Repoti (per Fisher's Motionto Sanction FAA'sNoncompliance).
Regional Counsel purportedto file a Response to ShowCause Order onMay 31,2016. No counsel ofrecord for FAA signed the submission, however, so it violated Rule ll(a) ofthe Federal Rules ofCivil Procedure ("FRCP"). Respondent promptly called this

**v~i~o:~.jlajjl!~· ~~~~\**  

### Government

**~** 

### Exhibit

**~**

**~** 

## ,-

**~** A-RespondentMotion to Strike andto Dismiss Regional Counsel's attention; Regional Counsel took no couective action. Accordingly, under FRCP ll(a), "the conrtmuststrike anunsignedpaper" (emphasis supplied), and FAA must be deemed to have failed to respond to the Show Cause Order, muchless to have provided any reason for the Judge notto dismiss the action for the reasons stated inthat Order. Regional Counsel'spersistent delay and disregard ofapplicablerules and statutes has also renderedthe Complaint essentially moot nnderthe five-year, government-wide statute of limitations barring the commencement ofany 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.2d480 (5th Cir. 1985) and 3MCo. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994.) ltis undisputedthatthe alleged act at issue inthis matter occurred onJuly 20, 2011. That was five years andtwo months ago. It is pointless and grossly wasteful for Regional Cow1sel to insistonpursuingthis case. They are asking the Administrative LawJudgeto devote considerable time and effort in deciding motions to dismiss thathave beenpending for the last 15 months and, even ifFAAwere to prevail onthe motions, Regional Counsel offers the prospect ofeven more wasted effort in a hearing FAA conservatively estimates would consun1e at least three full days ofthe Judge'stime. Even ifone were to assumethat the end result ofthat proceeding wouldbe a final orderthatRespondent pay a $5,850 civil penalty, the Government is bmred by statute from bringing any court actionto compelpayment. Respondent's cotmsel attempted to reach Regional Counsel ofrecord by telephone to ask whether this motion would be necessary, buther office receptionist refused to take a message and slanm1ed down the phone inmid-conversation. Ms. Harper did not return the call. WHEREFORE, Respondent submits thatthe Complaint mustbe disnlissed with prejudice on any or all ofthe 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

2RespondentMotion to Strike and to Dismiss



### CERTIFICATE OF SERVICE

On September 23,2016, the undersigned sent by the indicated type(s) ofservice at least one copy ofthe foregoing Motion to each ofthe persons listed below.
D [One Copy by U.S. Certified Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 2W1000 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 ofTransportation Federal Aviation Administration Southern Region 1701 Columbia Ave. College Park, GA 30337 

### 0 [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. (Ell-310) Washington, DC 20590 

### D [Oiiginal + One Copy by Air Courier] FederalAviation 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 3In The Matter Of: 

### SERVED: October 6, 2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARlNGS WASHINGTON, DC

DocketNo. FAA-2015-B21 Fisher Scientific Company, LLC ) ) ) ) ) c,. CaseNo. 2011S0700457 Respondent ORDERSTAYING PROCEEDINGS On October 4, 2016, the undersignedjudgeheld a prehearing conference where theparties presented oral arguments regarding the Respondent's Motionto Dismiss Complaintfor Insufficiency and for Complainant's Violation ofRule 208. During the prehearing conference, the undersignedjudgereserved ruling onRespondent's previously filed motions. That same day, Respondent's Counsel filed aNotice oflnterlocutoryAppeal ofRightbased upon a failure ofthe Administrative LawJudge to dismiss the proceedings in accordance with 14 C.F.R. §13.215. Pursuantto 14 C.F.R. § 13.219(c), IT IS HEREBY ORDERED: the proceedings in this case are stayeduntil the FAA decisionmaker issues a decision on the interlocutory appeal. 1

Attachment: Service List DOUGLAS M. RAW ALD Administrative LawJudge

1 In the Notice ofInterlocutory Appeal ofRight, the Respondent requested a copy ofthe transcript from the October 4, 2016 prehearing conference be providedno later than October I0, 2016. Pursuanttothe contract with the court reporting company, a copy ofthetranscript will be provided to all parties within 15 days ofthe hearing. 1f necessary, the Respondent should contact ForThe Record, Inc. at 301-870-8025 to attempt to obtain an expedited copy, orrequest additional time from the FAA decisionmaker to submit the appellate brief. Government

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**~**DocketNo. 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 JamiesonAve., Suite 1212 Alexandria, VA 22314 TEL: 703-757-5866 ONE COPY

Email: jcox@potomacstrategyassociates.com Andrea Michelle Harper, Complainant's Counsel SeniorAttorney, Office ofthe Regional Counsel Enforcement Division, Southern Team Federal AviationAdministration P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 The Honorable Douglas M. Rawald,Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant 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 OFHEARINGS WASHINGTON,DC

FEDERALAVIATION ADMINISTRATION, } Complainant, } } v. } } In the Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil PenaltyAction) FISHER SCIENTIFIC COMPANY,LLC, } Judge Rawald Respondent. }

NOTICE OF INTERLOCUTORYAPPEAL OF RIGHT

Please take NOTICEthat Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter referred to as "Fisher") hereby files, pursuantto Rule 219(c) ofthe FAA'sRules ofPractice ("Rules"), 14 C.F.R. Sec. § 13.219(c), an interlocutory appeal of right based onthe Administrative LawJudge's failure to dismiss the proceedings in accordance with Rule 215, 14 C.P.R. Sec.§ 13.215. Rule 219(c) provides, inpertinent part, the following: "Ifa party notifies the administrative law judge ofan interlocutory appeal ofright, theproceedings are stayeduntil the FAAdecision maker issues a decision onthe interlocutory appeal." !d. (emphasis supplied). Please take further NOTICE that Respondentrequests a copy ofthe transcript ofthe Prehearing Conference that the administrative lawjudge convened on October 4, 2016, without the appearance byor attendance of any counsel ofrecord for Complainant. Itwill be crucial for Respondentto receive the transcript no laterthan October 10, 2016, to enable Respondentto quote from it, provide a copy ofit and otherwise to file with the FAA decision maker on a timely basis the supporting documents required under Rule 219(d). 

### Government 

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# KWHEREFORE, Respondentrespectfully requests the administrative lawjudgeto stay all further proceedings in this matter and, ifnecessary, the agency decision-makerto issue an orderthatthe administrative lawjudge comply withthe 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 sentby the indicated type(s) ofservice at least one copy of the foregoing Notice on each ofthe persons listed below. 

### 0 [One Copy by U.S. Certified Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. DepartmentofTransportation 1200 NewJerseyAve., S.E. (Ell-310) Washington, DC 20590 

### 0 [Original+ One Copy by Hand] Hearing Docket Clerk, AGC-430 Federal AviationAdministration Wilbur Wright Bldg., Suite 2Wl000 600 Independence Ave., S.W. Washington, DC 20591 

### 00 [One Copy by Air Courier] AndreaMichelle Harper, Esq. SeniorAttorney Regional Counsel, ASO-7 U.S. Department ofTransportation FederalAviationAdministration SouthernRegion 170I Columbia Ave. CollegePark, GA 30337 

### 0 [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Ave., S.E. (Ell-310) Washington, DC 20590 

### 00 [Original+ Two Copies by Air Courier] Federal AviationAdministration 800 Independence Ave., S.W. Washington, DC 20591 Attn: Hearing DocketClerk, AGC-430 Wilbur Wright Building- Suite 2WI000 

### 0 [One Copy by U.S. Mail] Andrea Michelle Harper, Esq. SeniorAttorney Office ofthe ChiefCounsel Enforcement Division, SouthernTeam U.S. Department ofTransportation Federal AviationAdministration SouthernRegion P.O. Box 20636 Atlanta, GA 30320

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