UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.



### .. INJHEMAJTERQF FISHER SCIENTIFIC LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Douglas M. Rawald COMPLAINANT'S RESPONSE TO SHOW CAUSE ORDER 

# ·R-ECEIVED JUN 0 12016 HEARING DOCKET

Complainant, by and through the undersigned counsel, hereby files its Response to the Orderto Show Cause and Provide the Requested Information served May 1 7, 20 16, and states the following: 1. Respondent's counsel and the undersigned attorney exchanged several emails on April19, 2016, and agreed to "meet" April20, 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 undersiJ;,'lled 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 JointReport. 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 April20, 2016. See Exhibit 2. The JointReport 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 April20, 2016, as required. The parties had a thorough discussion ofthe underlying facts ofthe case and stated their respective positions. At the end of the discussion, both parties agreed itwould 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 nottake place is withoutmerit. 5"- Equally unmeritmious is Respondent's assertion that the undersigned went "AWOL." Respondent claims several messages were left that were unreturned; 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 mistmths. 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, Complainantrequests that any litigation scheduling/deadlines and venue decisions bepostponeduntil a ruling on the pendingmotionto 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.

Submittedthis 

### 31st day ofMay, 

### 2016.



### , /Ja/JttP'S 

### ;lt/«/ley
ANDREA MICHELLE HARPER Senior Attorney Office ofthe ChiefCounsel EnforcementDivision, SouthernTeam

2CERTIFICATE OF SERVICE I hereby certifythatI have this day served a copy ofthe foregoing Response to Order to Show Cause Inthe Matter ofFisher Scientific LLC, DocketNo. FAA-2015-1321, via overnight mail to: Jerry W. Cox, Esq. Potomac Strategy Associates 2050 JamiesonAve., Suite 1212 Alexandria, VA 22314 (email)jcox@potomacstrategyassociates.com (tel) (703) 757-5866 The Honorable Douglas M. Rawald Administrative LawJudge Office ofHearings, M-20 US Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 TEL (202) 366-5121 FAX (202) 366-7536 andthe original and one copy to: Hearing Docket Federal AviationAdministration 600 Independence Avenue, SW Washington, DC 20591 ATTN: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000

# Jem=~lttk KIMBERLY A. HOBBS Administrative Officer 

## MAY 3 1

## 201& Dated

3Harper, Michelle (FAA) From: Sent: To: Jerry W. Cox <jcox@potomacstrategyassociates.com> Tuesday, April 19, 2016 5:19 PM Harper, Michelle (FAA) Subject: Re: TFSI

- FAA

- Chino

- Perfect. I'll look forward to "meeting" youthen. Will stand by for your call. Jerry W. Cox (703) 757-5866 On Apr 19,2016, at 4:55PM, <Michelle.Harper(alfaa.gov> <Michelle.Harper(alfaa.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

- Ijustnowgotbackto my office. I'd be gladto speakw/younow or at any time tomorrowthat would fit your schedule. Jerry W. Cox (703) 757-5866 On Apr 19,2016, at 11:33 AM, <Michelle.lTarpen'@faa.gov> <Michelle.Hamerial,faa.gov> wrote: Yes, that'sfine. From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] Sent: Tuesday, April19, 2016 11:31 AM To: Harper, Michelle (FAA) Subject: Re: TFSI

- FAA

- Chino

- I'II be out ofthe office until around 4 this afternoon. Would it be convenientto speakthen?

On Apr 19, 2016, at 9:55AM, <Michelle.Harper(a!,faa.gov> <Michelle.Hamcr@faa.gov> wrote: Hi Jerry1 **~GOVERNMENT** 

### !\' EXHIBIT i! A 

# i---=J-=---I will give you a call this afternoon to discuss thejudge's Order. Regards, Michelle Harper Senior Attorney Office ofthe Chief Counsel

.EnforcementDivision,- South.ernTeam (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 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 contidcntial, an attorney-client communication, attorney-work product, pari ofthe agency's deliberative process, and/or contain privacy-sensitive information. This email must not be forwarded 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 -

2I phonedyou April 15 and left a voicemail concerning Judge Rawald's April 6 order, butI haven'theard back. Would you please callme? JerryW. Cox I Potomac Strategy Associates 12050 Jamieson Ave., Suite 12121 Alexandria, VA 223141 tel703-757-58661 wvvw.potomacstrateqvassociates.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 TFSichinoJointReport0423.016.pdf Attachments:
Please find attached a proposed fmal version ofthe Joint Report 

### inresponse to Judge Reward's Order dated April 6. Unless you see a need for changes, would youplease sign onpage l and return to me for countersignature? I'll finalize the certificate ofservice at that time. I'm sure it's inbothparties' interests to getbackto thejudgepromptly. I also appreciate your call this morning and look forward to whatever substantive discussions mighthelp to resolve this case.

OnApr 19,2016, at 5:19PM,Jerry W. Cox <jcox(cilpotomacstrategvassociates.com> wrote: 

### Perfect. l'lllook forward to "meeting" you then. Will stand by for your call. Jerry 

## W Cox (703) 757-5866 On Apr 19, 2016, at 4:55 PM, <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 4:54 PM To: Harper, Michelle (FAA) Subject: Re: TFSI - FAA - Chino - Ijustnow got backto my office. I'd be gladto speakw/you now or at any time tomorrow that would fit your schedule. Jerry W. Cox (703) 757-5866

1**~GOVERNMENT** 

## !i EXHIBIT 

# ! 2.On Apr 19,2016, at 11:33 AM, <Michelle.Harper@faa.gov> <Michelle.Harper(dlfaa.gov> wrote: Yes, that's fine. From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] Sent: Tuesday, April 19, 2016 11:31 AM**T~:-HaFper,-MichelleErAA)** Subject: Re: TFSI - FAA - Chino - I'llbe out ofthe office until around4 this afternoon. Would itbe convenientto speakthen?

OnApr 19, 2016, at 9:55AM, <Michelle.I-l.arper@faa.gov> <Michelle.Harper(iiifaa.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) 305-5200Tel. (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 nowhandling this case. I have cc'dher onthis 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 ofthis communication, please delete the original message and notify the
· ·· senderhnmediately.This

## r!lessage 1naybe confidential, an atiorney-client communication, attorney-work product, pmi ofthe agency's deliberative process, and/or contain privacy-sensitive information. This email must not be f01warded or otherwise shared without express permission ofthe sender. From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] Sent: Monday, April 18, 2016 7:04PM To: Vines, William (FAA) Subject: TFSI - FAA - Chino - 

### I phonedyouApril 15 and left a voicemail concerning Judge Rawald's April6 order, but I haven'theard back. Would youplease call me? Jerry W. Cox 1Potomac Strategy Associates 1 2050 Jamieson Ave., Suite 12121 Alexandria, VA 223141 tel703-757-5866 1 www. ootomacstrateqvassociates.com

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

FEDERAL AVIATIONADMINISTRATION, } Complainant, } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald } v. } } FISHER SCIENTIFIC COMPANY, LLC, } Respondent. }

JOINT REPORT ComplainantFederal Aviation Administration (hereinafterreferredto as "FAA") and Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter "Fisher")jointly respondhereinto the Order entered April6, 2016. The Order referenced ajointreport including "alist ofany pending motions that have been previously filed buthave yetto be ruled upon." One suchmotion 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: Apri123, 2016 Respectfully submitted,

Michelle Harper, Esq. Regional Counsel, ASO-7 U.S. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 College Park, GA 30320JeiryW.Cox,

## Esif· 2050 Jamieson Ave., Suite 1212 Alexandria, VA 22314 (email)**if9JS@I?91Q!11<\C§trat"'gy[l~$QCi:lt"'s,ggm** (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 indicatedtype ofservice at least one copy ofthe foregoingJoil1trzeport to each ofthepersonslistedbelow.
00 [One Copy by U.S. Postal Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (E11-310) 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. (E11-310) Washington, DC 20590 0 0[0riginal 

### +One Copy by Postal Mail] 0 0 [Original 

### + One Copy by Air Courier] Hearing Docket Clerk, AGC-430 FederalAviationAdministration Wilbur Wright Bldg., Suite 2Wl000 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 SouthernRegion 1701 Co1umbiaAve. College Park, GA 30337 Federal AviationAdministration 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 AviationAdministration SouthernRegion P.O. Box20636 College Park, GA 30320

Jerry W. Cox, Esq.