# RECEIVED
U.S. DEPARTMENT OF TRANSPORTATION 

## OCT 3 12016

FEDERAL AVIATION ADMINISTRATTON WASHINGTON,DC 

## HEARING DOCKET

FEDERAL AVIATION ADMINISTRATION, } Complainant, } } v. } } FISHER SCIENTIFIC COMPANY, LLC, } Respondent. } In the Matter ofFisher Scientific Company, LLC Docket No. FAA-2015-1321 (Civil Penalty Action) Judge Rawald

PETITION FORLEAVE TO AMEND APPELLANT'S BRIEF TO REFERENCE AND INCLUDE TRANSCRIPT OF PRE-HEARING CONFERENCE
The FAAdecision-maker inthe instant appeal ("the Administrator") cannot deny the requested reliefwithout suborning unethical conduct by its own attorneys in the office of Southern Regional Counsel ("SRC" or "agency counsel") and encouraging that office's wholesale disregard ofRule 11 ofthe Federal Rules ofCivil Procedure ("FRCP").
Whenthe agency counsel ofrecord, Michelle Harper, filed no response to an Order dated April 6, 2016, the AdministrativeLaw Judge ("ALJ'') assigned to hearthis action threatened on May 17, 2016, to dismiss the government's case. 1 Lacking any legitimate excuse for her failure to comply with the April 6 Order, agency counsel filed a purported response to the ALJ's May 17 Show Cause Orderthat made the following factual allegations that are central to the instant appeal and to the government's Response thereto: (1) that "theundersigned [Mr. Ellis? Ms. Harper?] and Respondent's Counsel had a lengthyphone call discussing the issues in the case;" and (2) thatthe "parties had a thorough discussion of the underlying facts ofthe case ...." 2 Ms. Harperhas never signed the purported response and could not ethically do so because those statements are patently false, as unquestionably demonstrated by the undersigned's telephone

1Appellant's Brief, Exh. 6. zAppellant's Brief, Exh. 7 

### 'If'If 2 & 4 (emphasis supplied).records 3 Those phone records leave no doubt thatthe supposedly "lengthy phone call" lasted a mere 20 minutes and thatthe entire "discussion ofthe underlying facts" lasted barely two minutes and amounted to nothing more than Ms. Harper brazenly laughing offthe ALJ's Order by admitting that she had not "looked at that file in years." 4 Perhaps with intent to coverup the falsehoods in thepurported Response to Show Cause Order, andto avoid Ms. Harper orFAAfacing potential discipline or sanctions under Rule 11, another lawyerwho has never entered an appearance in this case, Mr. Ellis, wrote his own name in the signature block as "managing attorney for" Ms. Harper. While FAA may have delegated to Mr. Ellis authority to approve and sign civil penalty notices and other sorts ofdocuments, no such delegation can relieve either Mr. Ellis orMs. Harper from their ethical and procedural obligations to make specific certifications regarding the truth offactualcontentions in the document that they are submittingto ajudge intheir names. Ru1e 11 provides, in pertinent part, the following: (a) "Every

... paper must be signed by atleast one attorney of recordin the attorney's name (b) By presenting

... a ... paper- whether by signing, filing, submitting or later advocating it

- an attorney
... certifies to the best ofthe person's knowledge

... formed after an inquiry reasonable under the circumstances:

... (3) the factual contentions have evidentiary support
...." The "managing attorney" whose name appears onthe purportedResponse could nothave done the slightest due diligence regarding thetruth or falsehood ofthe key assertions referenced above or other factual contentions in that submission. Ifwriting his name on the document was intended to be a certification required by Rule 11, he is as guilty as Ms. Harper ofviolating FRCP 11(a) and other ethics requirements concerning candorbefore a tribunal. At a minimum, he has exposed himselfand the FAA to sanctions for making these demonstrably false and unverified factual assertions, as provided in FRCP 11(b).
NeitherMs. Harper nor Mr. Ellis appeared when the ALJ convened a Pre-hearing Conference at 10:00 a.m. on October 4, 2016. When the ALJ finally found an attorney in the office ofthe SRC, it turned outto be a surprised and unprepared Mr. Ellis. Even though he is the "managing attorney" inthe office, he offered no explanation or excuse for Ms. Harper's failure to appear and disclaimed any knowledge ofher whereabouts. The undersigned has no way to know why Ms. Harper went AWOL for a third time inthese proceedings, but it shou1d not be too surprising that an attorney who name was attached to such blatant falsehoods, having escaped signing and certifying the submission, wou1d prefernot to be questioned by ajudge about it, either.

3 Appellant's Brief, Exh. 8, Attachment 1. • Appellant's Brief, Exh. 8 at2-3. Respondent's Petition for Leaveto Amend 2She need not have worried so much about that prospect. The ALJ, too, appears determined to avoid testing the veracity and validity ofthe Response to the Show Cause Order. Respondent moved to strike it on September 23, 2016, and agency counsel were obligatedundertheFAA Rules ofPractice file a reply by October 8. Atthe October 4 hearing, however, the ALJ ordered SRC notto reply.5 He cited no authority for that Order and has no lawful authority to enter it6 This is exactly the type ofsituation FAAhad inmind when it created Rules 215 and 219, where an ALJ takes sideways action to prolong needless litigation. Under the express terms ofRule 219, an appeal ofright lies with orwithoutpredicate action by the ALJ, wheneverthere is a "failure ofthe ALJto dismiss the proceedings."
SRC's most recent counsel ofrecord, Mr. Landers, compounded the cover-up ofagency counsel's failure to respond tothe Show Cause Order in two respects. The Complainant's Reply Briefrelies heavily on averments about Mr. Ellis's earlier, third-hand, factual representations about a conversation in which neither Mr. Ellis nor Mr. Landers participated and the gist of which is disproven by the undersigned's telephone records 7 Like Mr. Ellis, Mr. Landers appears not to have done any ofthe due diligence required byFCRPRule 11 before making crucial factual representations to the Administrator concerning events about which he had no first-hand knowledge. The Reply Briefalso relies heavily on Mr. Landers' representations about what occurred during the October 4 Conference even though he did not participate in it, either. 8 The minimum amount of"inquiry reasonable under the circumstances" required under FRCP 11 would be to readthe transcript ofthe conference. Mr. Landers apparently did not do even that much before he signed, filed and otherwise advocated the Reply Brief. This is a plain violation ofFRCP ll(b) and should be sanctioned by the AdministratorunderFRCP II(c). By contrast, the undersigned presented, to the best ofhis personal recollection, information about whatwas and was not presented and what was and was not decided during the October 4 Conference. The undersigned believes the transcript will bear out key factual assertions in Appellant's Brief, which specifically noted that the transcript had not been provided before the filing deadline for the Brief. To make it possible for the Administratorto get a clearer grip on the facts ofthis five-and-a-half-year old, $5,000 civil penalty case, the undersigned offered in the Briefto correct and revise it to cite to specific pages afterthe transcript arrived9 Accordingly, AppellantFisher Scientific Company, LLC, petitions the Administratorfor leave to file an Amended Briefto make appropriate page references and to include as Attachment 10 all

s Conference Transcript at_. 6 The limits ofan AL)'s authority to disregard the FAA Rules ofPractice are explained in the Brief, Exhibit3. ' Complainant's Reply Briefat 2 ("the parties did in fact confer

..."). s/d. at 3 ("there is not an 

### ALJ decision for the Decisionmakerto review") 9 Briefin Support oflnterlocutoryAppeal at4, n.ll. Respondenfs Petition for Leave to Amend 3orpart ofthe October4, 2016, Pre-hearing Conference transcriptwithin ten days after actual receiptbythe undersigned.

Dated: October 28, 2016

Respondent'sPetitionfor Leave to Amend \._-'' Jerry,

. Cox, Esq: 2050 Jamieson Ave., Suite 1212 Alexandria, VA 22314 (email) jcoxiW.p_gtoma.;_sJ.rat<')gy_associat!'_'L(;()_ffi (tel) 703-757-5866 Counsel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co , LLC

4CERTIFICATE OF SERVICE

On October 28, 2016, the undersigned sent by the indicated type(s) ofservice at least one copy ofthe foregoing Notice on each ofthe persons listed below.


### 0 [One Copy by US. CertifiedMail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (E11-3JO) Washington, DC 20590 

### 0 [Original +One Copy by Hand] Hearing Docket Clerk, AGC-430 Federal Aviation Administration Wilbur WrightBldg., Suite 2W1000 600 Independence Ave., S.W. Washington, DC 20591 

### 00 [One Copy by Air Courier] Ryan M. Landers, Esq. Enforcement Division Southern Team

1701 Columbia Ave. CollegePark, GA 30337

Respondent's Petition for Leave toAmend 

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

### 00 [Original+Four Copies by Air Courier] Federal Aviation Administration 800 Independence Ave., S.W. Washington, DC 20591 Attn: HearingDocket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 

### 0 [One Copy by US. Mail] AndreaMichelle Harper, Esq. Senior Attorney Office ofthe ChiefCounsel EnforcementDivision, Southern Team US. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 Atlanta;YA



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**(MJ~)** \,_ ,()X, Jerry W. Cox, Esq.

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